The family law world has long awaited changes to divorce legislation to allow couples to divorce without the need for one party to be blamed for the marriage breakdown. The law in respect of divorce has not been updated since 1973.
It is estimated that 3 out of 5 divorces are applied for on a fault basis. Under the current law, parties are unable to apply for a divorce or agree to divorce without making allegations about one party’s conduct unless 2 years have elapsed since their separation.
The leading academic study “Finding Fault” published in 2017 concluded that:
- Divorce petitions are often not accurate descriptions of why a marriage broke down;
- The courts make no judgment about whether allegations made in divorce petitions are true;
- The use of fault may trigger or exacerbate parental conflict which has a negative impact on children; and
- Fault does not protect marriage or deter divorce.
Benefits of removing the ‘blame game’
It is the view of all family law professionals that changes in the law need to be brought about to allow married couples to divorce without having to detail the reasons behind it. After all, couples do not have to provide reasons to marry in the first place.
Removing the need for one party to be at fault for the marriage breakdown avoids additional conflict, acrimony and upset between the parties for the benefit of their ongoing relationship and for any children of the marriage. This also allows for more constructive discussions in relation to the division of finances and the arrangements for children.
It also removes the need for parties to rehearse distressing times during their marriage and to disclose deeply personal matters simply for the sake of drafting a divorce petition.
It is anticipated that a neutral divorce would also minimise the legal costs associated with divorce.
The ‘Divorce, Dissolution and Separation Bill’ was introduced by the former Justice Secretary David Gauke MP. It seeks to give effect to the long overdue reform of divorce law.
What will the law change?
- The bill removes the need to establish one of five ‘facts’ to support the divorce and instead requires parties to provide a statement of irretrievable breakdown. The court will accept this statement as conclusive evidence that the marriage has irretrievably broken down.
- Respondent’s will no longer be able to defend divorce proceedings (unless on the grounds of fraud, lack of jurisdiction or procedural irregularities).
- A new option will become available for parties to apply jointly for a divorce where the decision to divorce is mutual.
- There will be changes to modernise divorce terminology and make it easier to understand. The Decree Nisi will become a ‘conditional order’ and Decree Absolute will be replaces with ‘final order’.
- A minimum period of 20 weeks will be introduced from the date that the divorce is applied for until Decree Nisi can be pronounced allowing for an opportunity for couples to agree financial arrangements.
When will no fault divorce be introduced in England and Wales?
The Divorce, Dissolution and Separation Act 2020 received Royal Assent in June 2020 but the reforms have not yet come into force. It was due to be implemented in the autumn of 2021 but this has now been delayed until 6 April 2022. Legal practitioners therefore anticipate being able to lodge applications for divorce on the basis of non-fault from 6 April 2022.