No fault divorce - can couples go ahead now? - Family Law Partners

No fault divorce – can couples go ahead now?

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A marriage or civil partnership breakdown is a highly emotive time in any couple’s life. It is an event that can have a long lasting, detrimental impact on all those involved, especially any children of the family. To reduce the damaging consequences of a divorce, campaigners have long fought for what is known as a no-fault divorce.

The Current Law

The current divorce legislation was enacted back in 1973 and makes clear that the parties can only apply for a divorce if they can prove that their marriage has irretrievably broken down. In addition to this, the petitioner (the spouse who is initiating the divorce proceedings) must prove one of the facts, as listed below:

  1. Adultery
  2. Unreasonable Behaviour
  3. Desertion
  4. Two years’ separation with consent
  5. Five years’ separation without consent

 

The current process requires one spouse, referred to as the petitioner, to initiate the process of filing for divorce and, in the process, make an accusation about the other spouse’s (the respondent) conduct unless they have been separated for two years or more.

A Turning Point – Owens v Owens [2015]

The case of Owens v Owens was a turning point in divorce law. In this case, Mrs Owens, despite appealing to both the Court of Appeal and the Supreme Court, was unsuccessful in persuading the judges that Mr Owens’ behaviour was unreasonable enough and was consequently forced to stay unhappily married until 2020, when she could petition on the only available basis of five years’ separation without consent. This case highlighted how outdated divorce law has become. The current legal provisions were passed at a time where attitudes to marriage and divorce were significantly different. Due to the rise of secularisation, many have disassociated themselves from religious or spiritual views and therefore do not believe as much in the ‘sanctity’ of marriage.

Why is Reform Needed?

Legal professionals, members of Resolution and the National Family Justice body have been campaigning for no-fault divorce for over 30 years. A prominent advocate has been Baroness Hale, former President of the Supreme Court, who has said that the “current law’s preoccupation with assigning blame creates unnecessary conflict between divorcing couples and prolongs proceedings.” Others believe the current law is outdated and does not allow for those cases where the parties just drift apart and want to separate amicably. Further, there have been concerning cases, like Owens v Owens, where people have been forced to remain married to incompatible or even abusive partners. The need for reform to the current law is driven by a need to lighten the family court’s heavy burden and backlog, issues which have been exemplified by external factors such as court closures and funding cuts.

The New Law – A Timeline

  • April 2022: The Divorce, Dissolution and Separation Act will come into force on 6 April 2022.
  • June 2020:The Divorce, Dissolution and Separation Bill obtained Royal Assent. Couples seeking a no-fault divorce initially had to wait until Autumn 2021, however this was delayed until April 2022.
  • February 2020: The bill had its second reading in the House of Lords.
  • January 2020: The Divorce, Dissolution and Separation Bill enters parliament on the 7th January 2020 and has its first reading in the House of Lords.
  • December 2019: In the Queen’s speech, the government indicated its commitment to bringing back the Divorce, Dissolution and Separation Bill, placing no-fault divorce back on the agenda.
  • September 2019: Prorogation of Parliament sees the Divorce, Dissolution and Separation Bill dropped.
  • July 2019: Following the Conservative Party Leadership election and selection of Boris Johnson as leader in 2019, David Gauke resigns from his position as Justice Secretary.
  • June 2019: the Divorce, Dissolution and Separation Bill was introduced into the house of commons.
  • April 2019: David Gauke, commits to no-fault divorce “becoming law as soon as parliamentary time allows.’
  • September2018: Following increased interest because of the Owens case, UK Justice Secretary, David Gauke, launches ‘public debate’ on proposals to modernise the UK divorce process.
  • July 2018: Supreme Court ruling on Owens v Owens. Ministry of Justice says it will look at reforms.
  • April 2018: The Owens divorce case makes further headlines, as an unhappy spouse is forced to remain married because the Supreme Court ruled that “joyless marriage is not grounds for divorce”. Support for no-fault divorce sees a boost.
  • March 2017: The Law Society advised members of the implications of Owens v Owens and informed the government about the need for change.
  • 2015: The Owens case sees an initial hearing dismiss the divorce petition, despite Owens providing 27 examples of why the marriage was irrevocably broken down. The judge ruled her case was “flimsy and exaggerated.”
  • 1996: The Family Law Act 1996 introduced no-fault divorce. This was repealed because it was deemed unworkable. Despite this, it had been widely supported by lawyers, the judiciary and relationship charities.
  • 1989: The Children Act 1989 rules that “the child’s welfare shall always be the court’s paramount consideration” during a divorce.
  • 1973: Under the Matrimonial Causes Act 1973 in England and Wales, anyone seeking a divorce must prove their spouse is at fault.
  • 1969: The Divorce Reform Act passes, allowing couples to divorce if they have been separated for 2 years consensually, or 5 years without consent from both spouses.

The Changes and Their Benefits

  • Retain the ground for divorce, replacing the requirement to evidence conduct or separation facts with a requirement for a statement of irretrievable breakdown;
  • Couples will be able to end the marriage or partnership without the need to blame, or by separating for a lengthy period;
  • Provides for the option of a joint application (there will still be the option for sole ones), this allows the parties to have an amicable separation with less impact on their relationship and children;
  • Removes the opportunity to contest (although there would still be some legal grounds for challenging an application) which will save time, costs and stress;
  • Introduction of a minimum timeframe of six months from petition stage to decree absolute;
  • Introduction of a new minimum period of 20 weeks from the start of proceedings to when the conditional order can be made – this will allow the parties to reflect on whether this is what they want, and also allows parties time to divide their finances, agree maintenance payments if necessary, and sort out child residence/contact/parenting plans;
  • Modernise the archaic language used within the divorce process, so for example, decree nisi will be changed to ‘conditional order’, decree absolute will be changed to ‘final order’ and petitioner will be simplified to ‘applicant’;
  • The 6-week period between the conditional and final order will remain;
  • Retention of the two-stage decree process – would still be necessary to apply separately for the decree nisi and the decree absolute;
  • Retention of the bar on divorce and dissolution applications in the first year;
  • There will be no minimum period of separation; and
  • All systems and guidance will need to be in place – this includes HM Courts & Tribunals Service, the government body responsible for the administration of the court in England and Wales, to make the necessary changes to their online divorce systems in readiness for the change. There will also need to be a significant amendment to the family procedure rules (FDR 2010), the code of procedure, followed by practitioners – insofar as it relates to the divorce process.

Will there be resistance?

Significant legal change is often met with resistance, and there are many individuals and groups who are against the introduction of a no-fault divorce. Some emphasise that no-fault divorce is damaging for the sanctity of marriage and states the institution of marriage needs to be supported. Others suggest that if divorce is easier to access, the divorce rate will increase as more couples will opt for divorce as soon as difficulties arise instead of taking the time to try and save the relationship.

Should I apply for a divorce now or wait until April 2022?

You may wish to wait for the no-fault divorce process  should any of the following be applicable to you:

  • You have an acceptable reason to divorce but your partner has told you that they will challenge your application/take you to court. Once no-fault is introduced, they will not be able to do this;
  • Your partner does not want a divorce or dissolution and you do not have any acceptable reasons to do so. Under the current law, you would have to wait 5 years to get a divorce without your partner’s consent. Under the new law, you will get one faster;
  • You have been separated for 5 years but you know your partner will challenge the divorce based on ‘grave financial hardship’; and
  • You worry the blame element may have a detrimental impact on your relationship and friendship with your ex-partner and may affect your children.

How we can help

Phoebe Roxbee is a Paralegal in our Brighton team.

If you would like any further information on no fault divorce in relation to your personal circumstances, please contact us for a confidential discussion with a member of our specialist team.

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