The new and welcomed ‘no fault divorce’ legislation is expected to come into effect in spring 2022, and will provide a complete overhaul of the current and outdated system for obtaining a divorce or dissolution of a civil partnership in England and Wales.
Why does divorce law need reform?
Under the current law, there is only one ground for divorce – the marriage has irretrievably broken down. The party petitioning for divorce has to show that their marriage has irretrievably broken down by relying on one of five facts:
- Adultery
- Unreasonable behaviour
- Desertion
- Separation of two years with consent
- Separation of five years without consent.
This means that one party has to assert blame on the other (i.e. by relying on adultery or unreasonable behaviour), or, in the alternative, the parties need to have been separated for a minimum period of two years before they can proceed to get divorced.
There is currently no option for the parties to simply agree that their relationship has broken down.
This means that there is typically an element of blame when issuing divorce or dissolution proceedings, which can often mean that matters become unnecessarily contentious at the outset. Taking unreasonable behaviour as an example, while instances of unreasonable behaviour can be light in nature, the petitioning party needs to provide enough by way of examples to demonstrate that the respondent has behaved in such a way that the petitioner can no longer reasonably be expected to continue living with the respondent. Although the nature of the unreasonable behaviour does not ultimately have an impact on the financial outcome or arrangements for the children arrangements, responding parties often become immediately defensive to the proceedings, which starts things off on the ‘wrong foot’.
The current system also provides the respondent with the option to contest the divorce proceedings (although this is rare in practice) which can be timely, costly and contentious for both parties.
The New System
The new system seeks to remove the element of blame from the divorce proceedings, consequently reducing conflict and allowing the parties to shift their focus to important matters such as the financial elements to their separation and arrangements for children.
Under the new system, and in replacement of the five facts mentioned above, the court will allow one party to make a statement of irretrievable breakdown to prove that the marriage has irretrievably broken down.
Responding parties will no longer be able to contest the divorce proceedings. This should provide some comfort to the petitioning party who may otherwise be worried about the response of their spouse.
It is also important to note that the terminology in divorce proceedings is changing, as follows:
- Decree Nisi to become Conditional Order
- Decree Absolute to become Final Order
- Petitioner to become Applicant.
Another significant change is that the new legislation provides for a minimum time period of 20 weeks from the start of the proceedings to when the conditional order (formerly decree nisi) can be made. The purpose of this window is to allow the parties a period of reconciliation, and time to reflect on their choice to separate. In practice, this may mean that the parties have to wait approximately 6 months before their divorce is finalised. While this is unlikely to be problematic for many people, as often the parties are in the process of negotiating their financial arrangements, and/or discussing long-term arrangements for their children in the meantime, for anyone wishing to conclude their divorce and finances more quickly, they may wish to consider filing for divorce before the new system comes into effect. The online divorce process currently being used is capable of completion in less than half the time. The new system will also apply those in same sex marriages and civil partnerships in the same way.
