No fault divorce: the beginning of the end for the blame game

Boardman, Hawkins & Osborne LLP

How?

The Divorce Dissolution and Separation Act 2020, which was passed into law on the 25th June 2020.

What is it?

It introduces “no fault” divorce in England and Wales for the first time.

When?

It is anticipated it will become law in the Autumn of 2021

Why?

Divorce law in England and Wales is currently governed by the Matrimonial Causes Act 1973.

The language of the Act such as Decree nisi and Decree absolute are regarded as confusing and archaic.

The Act sets out there is one ground for divorce: the irretrievable breakdown of the marriage.

This is established by relying on one of five facts:

  1. Adultery – one spouse must commit adultery and the other finds it intolerable to live with them: or
  2. Unreasonable behaviour- one spouse has behaved in such a way that the other cannot reasonably be expected to continue to live with them
  3. Desertion-
  4. 2 years separation with consent- both parties need to consent and must have been separated for 2 years
  5. 5 years separation without consent – if one spouse does not consent and must have been separated for 5 years.

The current law allows spouses to easily defend the divorce or cross-petition which leads to a court hearing. This has a significant impact for costs financially and emotionally, delay and uncertainty in waiting for the process to conclude.

Apportioning Fault

According to the ONS unreasonable behaviour was the most commons reason for opposite sex couples divorcing in 2019 with 49% of wives and 35% of husbands petitioning on these grounds. It was also the most common reason for same sex couples divorcing, accounting for 63% of divorces among women and 70% among men.

These statistics reflect the fact that often unreasonable behaviour is the only fact available to divorce immediately. Otherwise, couples have to wait either 2 years or 5 years before being able to divorce.

Owens v Owens

This case was reported in the news.

The wife petitioned for a divorce in May 2015 on the basis of the husbands unreasonable behaviour.

The husband defended (contested) the petition on the basis his behaviour was not objectively unreasonable in the context of the marriage.

The judge held that the wife had exaggerated the unreasonable behaviour and that as such the fact could not be relied on to establish the marriage had irretrievably broken down.

The Facts

Office of National Statistics:

  • There were 107,599 divorces of opposite sex couples in 2019, this is an increase by 18.4% from 90,871 in 2018.
  • There were 822 divorces of same sex couples in 2019, this is nearly twice the number in 2018 of 428.

The Future Law

The five facts are replaced with a new single requirement of a statement of irretrievable breakdown This will be treated as conclusive evidence that the marriage has irretrievably broken down.

Parties can apply jointly although there remains provision for one spouse to apply for a divorce order if a joint application is not possible.

The terminology has changed:

  • Decree nisi becomes the Conditional Order of divorce
  • Decree absolute becomes the Final Order of divorce

The new law introduces a cooling off period of 20 weeks from the date of issue of the divorce.

These changes also apply to the dissolution of Civil Partnerships.

Why the delay with implementation?

Training, information leaflets for court users, guidance notes for staff, professionals and court users, procedures, updated court forms and updated court IT systems are required to enable the new law to be put into practice. This takes time to prepare.

Aims

The aims of the new law :

  • modernise the procedure.
  • to simplify the terminology.
  • to make it easier to understand the process at the outset.
  • permit couples to jointly apply to the court for a divorce and to
  • separate as amicably and constructively as possible, and
  • without apportioning blame.
  • the cooling off period is to allow time to come to terms with the divorce order and to allay concerns of “quickie divorce” undermining marriage.

For further information please contact our matrimonial team about divorce and separation and resolving the financial and child arrangements by contacting BH&O either by telephone or by email 

Karen Newman, consultant solictor

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