No Fault Divorce - Long Awaited Changes
Over recent years there have been calls from many family lawyers and in particular pursued by Resolution, which is an an organisation of family lawyers committed to dealing with family breakdown issues in a conciliatory and constructive manner, for a review and change to the divorce laws in England and Wales.
The Matrimonial Causes Act 1973 sets the law which is still in force today, and although there has been some modernisation to include Civil Partnerships and more recently same sex marriages, the law is outdated.
Requirements for Divorce
The current requirement for a Divorce is that the marriage has irretrievably broken down, and to prove that one of the five statutory facts must be cited:
There is only one ground for divorce namely the irretrievable breakdown of a marriage. Irretrievable breakdown has to be proved with one of five statutory facts:
- That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent
- That the Respondent has behaved in such a way the Petitioner cannot reasonably be expected to live with the Respondent.
- That the Respondent has deserted the Petitioner for a period of two years immediately before the start of the divorce.
- That the parties have lived apart for a continuous period of at least two years immediately before the start of the divorce and the Respondent consents to the divorce being granted.
- That the parties have lived apart for a continuous period of at least five years immediately before the start of the divorce.
The Divorce Procedure
The current procedure is outlined below, the Court now also has the online portal system for Divorce. This procedure may change if the Respondent does not co-operate, as additional steps may need to be taken to enable the Divorce to progress.
Divorce, Dissolution and Separation Act 2020
In June 2020 the government’s Divorce, Dissolution and Separation Act 2020 was passed to allow for major overhaul of the divorce process, and to allow no fault divorce. At present the nearest thing to a no fault divorce is once parties have lived apart for at least 2 years, if the other party consents, or 5 years if there is no consent. This has put many separating couples into the position of having to rely on adultery or behaviour of their spouse to proceed without having to wait.
This can create unnecessary animosity between the couple, where fault has had to be alleged to begin the process. This can, unfortunately result in hard feelings, and reluctance to negotiate and work together to try and resolve related issues such as finances and arrangements for the children. This will inevitably also significantly increase legal costs.
The changes were due to come into effect in Autumn 2021, however this was delayed and has now been stated to come into effect in April 2022.
The Act will remove the ability to rely on the fault of the other part. Instead, the party issuing the Divorce, or Dissolution will have to file a statement of irretrievable breakdown. For the first time it will also be possible for the couple to apply together for the divorce. There will be no opportunity for the other party to defend the divorce, which will remove costly and time consuming cases through the divorce courts when one party does not agree with the divorce as was seen in the well-publicized case of Owens v Owens (2018)
An Updated Process
The process is geared to be more straightforward and the terminology will also change to be in plain English - the Decree Nisi will be a Conditional Order, and the Decree Absolute will be a Final Order. The Court online Portal is being improved to be able to cope with the changes, which was said to be a factor why it was put back until April 2022. This does not mean that Divorces will become “quickie divorces”, there will be a minimum of 20 weeks from when the Divorce application is filed with the Courts before the Conditional Order can be applied for, this is to give parties time for “meaningful reflection”, to proceed after that stage, this is confirmed when filing the application for Conditional Order – this will then not be made until at least 6 weeks have elapsed. The whole process is likely to take around 6 months to conclude.
What will remain the same, is that the Divorce proceedings will legally end the marriage, but does not change or deal with related financial matters and ownership and division of matrimonial assets, and legal advice should be sought to resolve these issues and the benefits of having a clean break Consent Order.
As the conflict is lessened by the introduction of the no fault divorce, it is hoped that parties will be able to focus on dealing with related financial matters, and arrangements for the children of the family in a more conciliatory manner to enable them to move on with their lives.
Further information is expected regarding the procedure and timing of the implementation of the no fault divorce, before April 2022.
Until the changes come into force the existing procedures remain, however the process does not have to be a battle, and dealing with matters amicably is encouraged.
When relationships break down and you need support and advice, our friendly and experienced family lawyers at Waldrons can guide you through each step of the way, and advise you on the most appropriate way forward based upon your own unique circumstances.