No Fault Divorce

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27 July, 2021

In April 2022, the new law on no-fault divorce will come in to affect in England and Wales. This is a long-awaited change to an area of law which has remained unchanged since 1973.

Under the no-fault divorce, separated couples will no longer need to rely on one of the current five facts in order to prove that the marriage has broken down irretrievably. This new law allows for a less contentious and more constructive approach to divorce.

The current five facts to prove that the marriage has broken down irretrievably are:

  1. Your spouse has committed adultery. This must be a sexual relationship with a member of the opposite sex and your spouse must be willing to admit to this. Parties who are applying for a dissolution of a civil partnership are not able to rely on this fact.
  2. Your spouse has acted in such a way that you cannot reasonably be expected to live with them. This is known as Unreasonable Behaviour and is currently the most common fact used to support a petition for divorce.
  3. Desertion for a period of at least 2 years.
  4. Two years separation with the consent of your spouse.
  5. Five years separation without the consent of your spouse.

Family Law practitioners have long been raising concerns over the need to place blame on one of the spouses, during a time where emotions are already running high. Even if parties are agreeable to the separation and are somewhat amicable, the necessity to play the "blame game" often upsets this and causes arguments and hostility where there may have been none previously.

It also allows for the respondent in divorce proceedings to defend or delay the divorce thus forcing someone to remain married when they do not wish to be, simply because their spouse does not agree to their reasons for wanting a divorce.

There have been several concerning cases over the years, including perpetrators of domestic abuse being able to use this to their advantage and refuse to allow the divorce to proceed therefore continuing their abusive behaviour.

In 2018 Tina Owens wanted to divorce her husband using the fact of unreasonable behaviour. She stated that her husband had acted in way that caused her to be unhappy. Her husband, Hugh Owens, refused to agree to the divorce and he denied the allegations of unreasonable behaviour made by his wife. He did not accept that the marriage had broken down irretrievable and stated that his wife was simply "bored" and accused her of having an affair.

Ms. Owens made an appeal in the Supreme Court, however she unfortunately lost the appeal. As Mr Owens was not willing to give his consent to the divorce proceeding based on 2 years separation, Ms Owens had to wait until 2020 to apply for the divorce based on 5 years separation, as at this time she would not require her husband's consent.

One of Supreme Court Judges stated that she had reached her conclusion "with no enthusiasm whatsoever", with another saying that the current law meant that Parliament had "decreed" that being in a "wretchedly unhappy marriage" was not a ground for divorce.

It was following this case, that government appeared to action the many calls made to reform the current divorce law.

How will it work?

The Divorce, Dissolution and Separation Bill will continue to keep the sole ground being that the relationship has irretrievably broken down, however, it will remove the requirement to prove this using one of the above facts.

The terminology will also change with the 'Decree Nisi' becoming a 'Conditional Order' and the 'Decree Absolute' becoming the 'Final Order'. The Bill will remove the ability for the respondent to consent or defend the divorce, dissolution or separation.

There will be a change to the timeline for the divorce. There will be a statutory waiting period of 20 weeks from the start of the proceedings to when the Conditional Order can be made. There is currently no minimum waiting period between the start of proceedings and when the Decree Nisi can be pronounced.

The Bill will retain the six-week period from when the Conditional Order is made, to when the Final Order can be made. This reflects the current statutory wait of 6 weeks between the date of the Decree Nisi and the date when the applicant can apply for the Decree Absolute.

Practitioners are pleased to see this reform as it removes the need for parties to blame the other and it means that the applicant will no longer have to be concerned about their spouse contesting the divorce. The new timeline means that couples will have to wait a minimum of 6 months for the divorce to finalise. During this time, it is important the couples make separate arrangements in respect of their finances and any necessary child arrangements.

For more information contact Rachael Sutcliffe in our Family/Divorce department via email or phone on 01772 220 022. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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