Whose fault is it anyway? Divorce, Dissolution and Separation Act 2020

Campaigners have been striving for ‘no fault divorce’ for over 30 years and at last, the ‘Divorce, Dissolution and Separation Bill’ has finally reached the end of its parliamentary journey having become an Act of Parliament on 25 June 2020.

In the biggest shake-up of divorce law in the last half century, the implementation of no fault divorce is a welcome change. The new law aims to reduce or potentially avoid the hostility and unnecessary tension that couples can face when separating by removing the need to apportion blame in divorce petitions.

The process of divorce under current law:

As our Alicia Cenizo explains in more detail here, the current law in England and Wales is that the first stage of divorce is to petition on the only current ground for divorce there is: the irretrievable breakdown of the marriage.

In order for this to be established by the court, the petitioner must rely on one of the following:

  • Adultery;
  • Unreasonable behaviour;
  • Desertion by the respondent;
  • Two years’ separation with the consent of the respondent; or
  • Five years’ separation (no consent required).

(The ground and facts for the dissolution of a civil partnership are the same, save for the fact that adultery is currently not available).

Therefore in order for the court to grant a divorce either one spouse must make allegations regarding the other’s conduct or the couple put their lives on hold and face years of separation before a divorce or dissolution can be granted.

To potentially complicate matters, the respondent has the ability to contest the divorce on the grounds of unreasonable behaviour or adultery. Whilst this is rare, it can happen and the case of Owens v Owens SC [2018] UKSC 41 is used as chapter and verse to highlight how a person can be trapped in a loveless marriage against their will if the respondent’s defence is accepted.

Presuming however, the petition is not contested, the divorce moves to the last two stages: the Decree Nisi (confirming you are entitled to divorce) and the Decree Absolute (which ends the marriage). Presently, the petitioner must wait a minimum of six weeks and one day from the Decree Nisi before they can apply for the Decree Absolute. Once the Decree Absolute is applied for and granted, the divorce is final and the parties are free to remarry.

How does the ground for divorce change under the new law?

The reform aims to move divorce law into the 21st century. Not least, the language used is also set to change as Decree Nisi will be replaced with “Conditional Divorce Order” and Decree Absolute will be replaced with “Final Divorce Order”. Whilst this may seem a minor change, the disposal of somewhat archaic language will help to assist more people better understand the stages of their divorce.

Importantly, the substantive changes to the law include:

  • The current requirement to establish fault will be replaced with the option to simply make a statement of irretrievable breakdown;
  • The statement of irretrievable breakdown will be able to be made by either one spouse or as a couple as joint applications will be possible;
  • If the other spouse does not agree to the divorce, they will not be able to contest it. The statement of irretrievable breakdown will be conclusive evidence and the court must then make an order for divorce; and
  • From the start of divorce proceedings to the Conditional Divorce Order the new minimum time period will change from six weeks and one day to 20 weeks. This should allow couples more time to agree the practical arrangements surrounding their separation.

What will no fault divorce achieve?

When a marriage breaks down, it can be a highly emotive time in a couple’s life and offence can easily be caused if the other is having to ‘play the blame game’. More often than not this is going to increase conflict and start the proceedings off on the wrong foot which does not necessarily bode well for any subsequent proceedings, especially those including ancillary financial and children matters. It can also lead to excessive involvement from solicitors which inevitably runs up each party’s legal costs.

Moreover the process of blaming is often unnecessary especially given the reality that the reasons set out in a divorce petition rarely make a difference to financial matters. There is therefore often little to be gained by giving examples of the respondent’s poor behaviour. By removing the fault aspect, it is intended that the reformed law will help to increase the likelihood of resolving divorce matters outside of the court, making for a more efficient and collaborative approach between couples which is greatly encouraged by most family practitioners.

Should I wait for no fault divorce to be implemented?

Whilst the reform has received Royal Assent, there is still a relatively long wait before the new law actually comes into force, with an approximate given timeframe of autumn 2021. It will therefore be dependent on each couple’s circumstances on whether it is possible or practical to wait.

What can we do for you?

Here at Streathers we understand that the decision to proceed with divorce can be a complex one. Not only can you face emotional stress but there are practical and legal complexities to navigate also. This is why we would recommend to seek the advice of one of our experienced family solicitors who are committed to approaching divorce as efficiently and amicably as possible, even whilst the fault-based system remains in place.

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