Reform and a welcome move towards no fault divorce

Category: Children, Divorce, Family

The current situation

Lawyers have called for the divorce law to be changed for some time, allowing couples the option of a ‘no fault divorce’. This week could finally see the new law approved.

Statistics from 2019 show that 42% of marriages result in divorce. In order to grant a divorce, the Court needs to be convinced that the marriage has broken down irretrievably. To achieve this a divorce petition can be based on one of the following five facts;

  1. Adultery
  2. Behaviour
  3. Desertion
  4. The parties have lived separately for more than two years and the Respondent consents to a divorce
  5. The parties have lived separately for in excess of five years.

The breakdown of the marriage is blamed on the respondent in three of the options listed. And the fourth option is recognised as the most ‘friendly. However, this can cause delay , as the petition cannot be lodged with the Court for two years after the separation. For some couples this delay presents no issue. But for many it’s quite important (perhaps for financial and/or emotional reasons) that they conclude their divorce proceedings quicker. Couples often need to use one of the other reasons listed in order to have the divorce granted. Behaviour is usually the option that they use.

Family lawyers can assist a Petitioner in drafting the allegations of behaviour within a petition as mildly as possible. But the petition also needs to be strong enough for the divorce to go through.  Tempers are often stretched at the end of a relationship and one less source of dispute between parties is definitely welcome.

The new law

The Divorce, Dissolution and Separation Bill had its second reading and debate in the House of Commons yesterday having passed through the House of Lords in March. The Bill passed this stage in the Commons by 231 votes to 16 against. The change in the law is designed to take away the need for any allegations of fault or blame. A move towards a no fault divorce.

The proposed new law will keep ‘irretrievable breakdown’ as the sole legal ground for divorce and dissolution but it will replace the current requirement to use one of the points outlined above, with a statement of irretrievable breakdown of the marriage or civil partnership.

Divorcing couples could make this statement jointly. This would give some of them the opportunity to reflect their mutual decision to divorce. It would also remove the opportunity to contest the decision to end the legal relationship. A statement of irretrievable breakdown will be conclusive evidence to the court that the marriage or civil partnership has broken down without needing to attach any particular blame to one party.

It won’t be a ‘quickie’ divorce

Starting at the beginning of proceedings, A new minimum period of 20 weeks will be introduced. It finishes when the applicant or the joint applicants can confirm to the court that a conditional order (currently known as Decree Nisi) can be ​made. With the current law, there is no minimum period. Some newspapers have reported that the new law will bring about a ‘quickie’ divorce, but this won’t be the case. Instead, it has a built-in time period that parties can use to reflect on their decision. The period of 6 weeks after the conditional order and the Final Order (currently known as Decree Absolute) will still apply.

The minimum 20 week period will greatly benefit those who are getting divorced. It gives parties who are sure they wish to separate, time to reach agreement about dividing their finances and to agree arrangements for spending time with their children. The whole process will have progressed without either party formally having to take any fault or blame for the breakdown of the relationship – a no fault divorce.

The Divorce, Dissolution and Separation Bill has a few more stages to get through Parliament before it becomes law but, when it does, it will represent a welcome change in the divorce process.

If you have any questions about what this might mean for you, or if you need further information about divorce and separation, please contact one of our fantastic Family lawyers. You can reach the team on 01752 827030 or you can email Anne Shears at [email protected]