Associate solicitor Gemma Kemp, in our leading Family Law team, provides an update on the ‘no fault’ divorce, set to come in to effect in the autumn of 2021.
For many, going through a divorce can be an incredibly stressful time. Unfortunately, the current divorce laws in England and Wales do not help to alleviate this.
As members of professional membership body Resolution, our Family Law team at Blandy & Blandy adopts a constructive and conciliatory approach when advising in relation to family law matters, and we encourage our clients to do likewise. However, under the current system, unless the parties have been separated for at least two years, the process begins with one of them having to blame the other for the breakdown of the marriage. Thankfully, that is about to change.
What is the current position?
Under the current law, the person initiating the divorce (the applicant) must satisfy the court that their marriage has irretrievably broken down by relying on one of five facts. Three of those facts require the parties to have been separated for at least two years, and the remaining two facts require the applicant to place blame on the other party (the respondent). These facts are:
Adultery - that the other party to the marriage (the respondent) has committed adultery, and the applicant finds it intolerable to live with them. This fact only applies to opposite sex couples, and the respondent must either admit to the adultery or the applicant will have to prove that it happened;
- Unreasonable behaviour - that the respondent has behaved in such a way as to make it unreasonable to expect the applicant to continue to live with him or her. A number of specific examples of the ‘unreasonable behaviour’ have to be set out in the divorce paperwork.
For those who have concluded that their marriage has broken down, they often do not want to wait two years before starting the divorce process, but do not want to blame the other for the breakdown of the marriage either. Having to decide who ‘takes the blame’ can be a difficult and emotional process and can lead to unnecessary resentment and arguments. This can then spill over in to discussions about financial matters and arrangements for the children, which can have long-lasting and damaging consequences for all those concerned.
What will the position be under the new laws?
The Divorce Dissolution and Separation Act makes a number of significant changes to the current system, and takes away the requirement for one party to blame the other for the breakdown of the marriage, if they want to divorce immediately. The changes will also apply to the dissolution of civil partnerships.
The sole ground for divorce will still be the ‘irretrievable breakdown of the marriage’, but the requirement to support this by stating one of five facts is removed. Instead, a ‘statement of irretrievable breakdown’ will be given, thereby eliminating the requirement for one party to blame the other; The parties can make a joint application to divorce; It will not be possible for a divorce to be contested; Currently, the pronouncement of Decree Nisi is the first stage of the divorce. Under the new system, the Decree Nisi will be replaced by a ‘Conditional Order’; Under the current system, the Decree Absolute is the final part of the divorce, which dissolves the marriage. Under the new law, the Decree Absolute will be replaced by a ‘Final Order’; There will be a minimum period of 20 weeks between the application for divorce and the Conditional order, and a further 6 weeks between the Conditional Order and the making of the Final Order. This is intended to give the parties an opportunity to reflect and consider whether they really do want to divorce.
It is hoped that no-fault divorce will reduce conflict between the parties, and enable them to focus on resolving other issues, such as arrangements for the children and the division of finances.
When can I apply for a ‘no fault’ divorce?
The Divorce Dissolution and Separation Act was passed by Parliament in June 2020, but is not yet in force. It is anticipated that the new laws will come in to effect in the autumn of 2021. Until then, the blame game continues, unless the parties have been separated for at least two years.
Is it worthwhile waiting for the new law to come in to force before initiating a divorce?
Given that the new processes and procedures are unlikely to be in force until the autumn of 2021, you may feel that this is too long to wait. Furthermore, there may be reasons why it is important to initiate divorce proceedings urgently, for example because there are international factors, and/or you suspect that your spouse is trying to hide money to defeat your financial claims.
Taking legal advice at an early stage is advisable, and will enable you to make informed decisions.
For further information or legal advice, please contact firstname.lastname@example.org or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.