No-fault Divorce – It’s on the way…
The campaign for a no-fault divorce process has been running for over 30 years and at long last, it will hopefully come into force in Autumn 2021. The Government has recognised the current law does not reflect modern relationships and, in June last year, they passed the Divorce, Dissolution and Separation Act 2020. The Court Service is currently working to create regulations to put the new Act into practice.
The new system will allow for one or both of the parties to make a ‘statement of irretrievable breakdown’. This is simply a statement that at least one party believes the marriage has broken down irretrievably. This statement will be taken by the Court as conclusive evidence that the marriage has broken down and is all that is required and it cannot be contested. Previously, only one party had to be the petitioner and the other had to be the respondent. Within the new law it will also be possible for both parties to submit a joint statement of irretrievable breakdown enabling a truly amicable divorce for the first time. If they both do this it is not necessary to attend any court hearings in relation to the divorce itself and it can all be dealt with online.
The laws on the dissolution of civil partnerships will be amended on the same principles at the same time.
Until the new arrangements are put in place the current law will continue to apply. Currently to commence divorce proceedings in England and Wales, it is necessary to prove that the marriage has ‘irretrievably broken down’. This is satisfied by proving one of 5 Facts:
- One party has committed adultery and the other party finds it intolerable to live with them;
- One party has behaved in such a way that the other party cannot reasonably be expected to live with them;
- The parties have been separated for 2 years and both parties consent to the divorce;
- One party has deserted the other for a period of 2 years or more;
- The parties have been separated for 5 years.
This current legal structure for divorce can leave couples trying to fit their circumstances into the one of available categories, as it is not possible to obtain a divorce without making an allegation of fault, unless the parties have been separated for at least 2 years. This can unnecessarily heighten tensions between a separating couple and lead to more bitterness. It can also have an ongoing impact on the resolution of additional issues relating to finances or children
Previously there was concern that divorce should not be too easy, as it would lead to more couples getting divorced. However, evidence from countries where they have already reformed their divorce legislation does not support this.
What does this mean moving forward?
The introduction of no-fault divorce regulations does not mean that the process of divorce will automatically be faster and indeed the couple should have time to properly reflect on the ending of their marriage. There is going to be a minimum period of 20 weeks between the filing of the initial application for the divorce and the Conditional Order (currently known as the Decree Nisi) and a further 6 weeks between the making of the Conditional Order and the Final Order (currently known as the Decree Absolute). This means it will take a minimum of 6 months to complete the process.
The new divorce laws will not affect arrangements for children issues or financial settlements and It is advisable that the parties take advice before applying for the Final Order, if they have not yet resolved financial matters, particularly if there are pensions. It is also hoped that by taking the blame out of the divorce process, it will encourage a more constructive approach to resolving these arrangements, as these negotiations can be being discussed and resolved, whilst the divorce is progressing in the background.
If you have any questions regarding the new no-fault divorce laws and how these may affect you…Talk to Tollers on 01604 258558. Our highly experienced Family lawyers are on hand to provide the latest advice and guidance.