NO FAULT DIVORCE: Proposed Changes and How Divorce Law will be Modernised

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23 May, 2019

The existing rules governing divorce are set under the Matrimonial Causes Act 1973. The law requires the petitioner to show that their marriage, or civil partnership, has irretrievably broken down. To do this they have to either prove that their partner (the respondent) is at fault, due to them committing adultery or behaving unreasonably, or by showing that they have been deserted for two years. If both parties agree, then either party can issue a divorce after they have been separated for two years. If no party is at "fault", and in the absence of consent, you would need to be separated for five years before you can divorce. The principles of divorce law have remained unchanged since 1973. However society has changed dramatically in that time. How we view divorce, and the number of people divorcing, has drastically changed. There is no longer the same stigma attached to divorce as there was in the 1970s. In 2012 the Office of National Statistics estimated that 42% of all marriages will end in divorce. The current statistics indicate that this figure is little changed - in 2018 118,000 people petitioned for divorce.

Many legal professionals feel that the current law is out of date. Professional groups, for example Resolution and the Law Society, have been lobbying the Government for many years to bring about changes to reflect our changed society. In particular, legal professionals want to see reform which removes the concept of fault when divorcing.

The Ministry of Justice issued a consultation last year, which closed in December 2018. In April 2019, the Government published its response to the consultation and confirmed it would go ahead and introduce new legislation. The legislation would cover marriage as well as civil partnerships.

Proposed changes to the law include:

  • Retaining the irretrievable breakdown of the marriage as the sole ground for divorce
  • Replacing the requirement to provide evidence of "behaviour" or separation with the requirement to provide evidence that the marriage has simply broken down irretrievably
  • The 2 stage legal process of decree nisi and decree absolute will remain
  • Creating an option of a joint application for divorce, alongside retaining the option for one party to initiate the process
  • Removing the ability to contest a divorce
  • Introducing a minimum timeframe of 6 months from petition to the final stage

David Gauke, the Justice Secretary, said the reform would help end the "blame game" for divorcing couples. These changes are supported by the Law Society, who believe the changes will reduce conflict between divorcing couples, allowing them to focus on more important issues such as the children, or finances.

The family team at Forbes Solicitors welcome these changes. The legislation is to be introduced "as soon as Parliamentary time allows", so watch this space!

For more information contact Sarah Robson in our Family/Divorce department via email or phone on 01257 260600. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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