No Fault Divorce and the End of the Blame Game

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There has been a lot in the papers about the progress of The Divorce, Dissolution and Separation Bill and “no fault divorce” which has finally, after many years of campaigning by Family Law groups amongst others, been given Royal Assent on 25th June 2020.

This will mean that the old grounds of divorce will change and allow parties to divorce without a lengthy wait or apportioning the blame. The leading academic study “Finding Fault” discovered that 43% of people identified by their spouse as being at fault for the marriage breakdown disagreed with the reasons cited in the divorce petition. There is a need for change to make the process more amicable and to reduce conflict and particularly parental conflict, at an already difficult time.

 

The current divorce law

Currently parties have to prove that their marriage has broken down irretrievably by establishing one of the following five facts:

  1. That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent
  2. That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent
  3. That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition
  4. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted
  5. That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

 

No Fault Divorce

The new Act will:

  • replace the current ‘five facts’ with a new requirement of providing a statement of irretrievable breakdown
  • remove the possibility of contesting the divorce
  • introduce an option for a joint application
  • make sure language is in plain English, for example, changing ‘decree nisi’ to conditional order and ‘decree absolute’ to final order
  • create a minimum period of six months from the date of the divorce petition to decree absolute to allow a meaningful period of reflection and the opportunity to turn back
  • at the end of the six-month period the applicant will be required to affirm their decision to seek a divorce before it is granted.

 

When Will No Fault Divorce Take Effect?

Unfortunately for those wishing to apply for a ‘no fault’ divorce, the Lord Chancellor has indicated that the reforms will not come into force until October 2021 to allow time for the rules and procedures to be amended.

Whilst this is arguably the greatest change in divorce law for a century, it is understandable that there will be several changes to both online systems and the practicalities of forms which will take some time. Unfortunately, given the pressing demands and delays of the current system this means another year of divorce petitions setting out who is at fault.

Should I wait?

For couples who want a ‘no fault’ divorce, you will need to consider the impact of waiting until the law changes. The new waiting period will mean that, even if you have been separated for 23 months by October 2021, you will need to wait for a further six months once the statute comes into force. It is important to take specific advice on the impact of waiting to apply for a divorce as not having a decree nisi will prevent a court from formalising any financial agreement reached between you both.

For most parties, it may be best to press ahead with a divorce under the current system, particularly given the current delays. With both parties’ cooperation divorces can take eight to 12 months from start to finish. Do note however, that it can take longer to conclude financial and children agreements.

Can I still use my ex partner’s conduct in financial proceedings or children proceedings?

Whilst the issue of fault will be removed from the divorce petition, this does not mean that where relevant, a parties’ conduct cannot be referred to in children or financial matters. In financial matters there are rare circumstances where conduct is relevant, and you may wish to consider how to word your petition as a result.

If I go ahead now, how can I make the divorce as amicable as possible?

We are members of “Resolution”, which is an organisation made up of family justice professionals that work with families and individuals to resolve matters in a constructive way. Resolution were instrumental in bringing about the above changes to the law.

As members of Resolution, we adopt a constructive and conciliatory approach when dealing with the divorce process and all other issues. Whilst the ‘no fault’ system is not in place, the divorce process can be dealt with amicably and presented in a way so as not to inflame issues and cause unnecessary upset.

 

HERE TO HELP

If you need advice about divorce or separation, please contact our Partner and Head of Divorce and Family, Tracey Dargan.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.