FAMILY LAW

No fault divorce, your questions answered

Divorce law is about to be overhauled and brought in line with many other international countries, simplifying the system so that blame does not have to be allocated and parties can rely on a simple statement from either one spouse, or both, that the marriage has broken down due to no fault of either party.

What are the current grounds for divorce?

Currently, there is only one ground for divorce, being that the marriage has irretrievably broken down. To satisfy the court of this the Petitioner to a divorce must prove one of five factors to file for divorce, being: adultery, unreasonable behaviour, desertion of two years, separation of two years with consent to divorce, and separation of five years without consent. In broad terms, blame must be attributed to the other party for the marriage break down unless a spouse was willing to wait for two years, still having to get the consent of the other, or five years with the risk of defences being raised. This results in both parties getting off on the wrong footing, with parties blaming the other for the breakdown of the marriage and, therefore, setting a hostile tone from the outset of the proceedings.

On 6 of April 2022, the Divorce, Dissolution, and Separation Act of 2020 will come into force.  From this point on, a simple statement from either one spouse, or both, that the marriage has broken down due to no fault of either party, will be introduced.

But why the change?

Divorce law in England and Wales has long been considered outdated. The current legislation is over 50 years old and requires specific reasons for the divorce, when all too often it is the case that there are no definable or quantifiable reasons for the breakdown of a marriage.

30 years of campaigning has led to this historic change in the law, with the organisation Resolution, who represents family law professionals in the UK, successfully leading the change.  Removing this need for ‘blame’ from the divorce process itself is hoped to make for a less acrimonious experience and ease in determining any ancillary issues arising from the divorce.

Divorce, Dissolution, and Separation Act of 2020

Changes coming into force in April 2022 include:

  • You will no longer need to satisfy the Court that the marriage has broken down by proving one of five ‘facts’ of divorce; adultery, unreasonable behaviour, desertion of two years, separation of two years with consent to divorce, or separation of five years without consent.  Instead, the provision of a statement of the irretrievable breakdown of the marriage on a ‘no fault’ basis will now be available, and for the first time, couples can opt to make this a joint statement.
  • Removing the option of one of the parties seeking to contest the divorce. It cannot be defended on the basis of irretrievable breakdown.
  • Removing confusing terminology in the divorce proceedings such as changing ‘Decree Absolute’, to ‘Final Order’, and changing ‘Decree Nisi’ to ‘Conditional Order’.
  • The introduction of a minimum period of 20 weeks from the start of proceedings, to confirmation from the Court that a conditional order (formally referred to as ‘Decree Nisi’) of divorce may be made.
  • Enabling couples to jointly file for divorce, instead of bringing proceedings against the other.

The above changes also apply to the dissolution of civil partnerships.

The future for divorce

This legislation ushers in the removal of the ‘blame game’ between couples and will help to end a marriage more amicably and peacefully.  It is hoped that, without the ‘blame’ culture, legal costs will be lower for clients and proceedings less damaging to their mental health.  This law is expected to be beneficial to children also, who are often caught in the middle of their parents’ divorce, thus easing the possibility of unnecessary conflict between parents.

Counter argument

Some argue that removing the ‘blame game’ in divorce proceedings will cause divorce rates to escalate.  They state that there has been evidence from other countries, who have adopted similar procedures, that divorces initially increased.  However, they report that this increase then fell off with divorce rates returning to normal.

Additionally, the Law Society has raised some concerns, namely:

  • That the notice period should begin when a spouse receives their ex-spouse’s divorce application, rather than from the start of proceedings.
  • If financial proceedings have started (to resolve the finances of the marriage), no final order (formally referred to as ‘Decree Absolute’) should be granted until a final financial order has been made if either party might suffer financial prejudice by a final order being made. This could become problematic where the spouses have pensions. Financial provision deriving from pensions under the new law might run the risk of not being implementable in the unhappy event of a spouse pre-deceasing the determination of any financial order but following the final order on divorce. This is because a pension will pass with the spouse’s estate in death, so in order to preserve that asset it was common practice to delay obtaining Decree Absolute until after any order concerning pensions was ratified.
  • There should be a three-month reflection period at the beginning of the divorce proceedings to allow separating couples time to consider their situation and get the legal advice they need.  Domestic violence applications, or applications that relate to children in a divorce, should be available during this reflection period.
  • The Law Society believes the government should reintroduce Legal Aid for early advice to support divorcing couples and help them understand their financial responsibilities and the needs of their children.
  • The Law Society also believes the current Court fee of £593 for divorce applications is too high and discriminates against those less able to afford it. The Law Society considers that Court fees should be reduced to reflect the fact that the new process will require less administration.

 

Conclusion

The Divorce, Dissolution, and Separation Act of 2020 is a breath of fresh air, updating previous divorce law which harped back to an entirely different era. The new legislation allows parties to more amicably divorce and reduces the need for a ‘blame game’ between parties, leading to more peaceful proceedings. On balance, however, more could be done and although this legislation provides much needed change, until reforms are made as to how finances and children matters are resolved upon divorce, this may just be a sticky plaster which fails to address the bigger issues that arise upon divorce.

About the authors


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Samantha Jago

Partner

Advises on family law matters including high value divorce, cohabitation disputes, children matters, pre and post nuptial agreements and domestic violence
about the author img

Natasha Slabas

Partner

Significant experience in cases with international issues in relation to children and financial matters following overseas divorce.

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