Helen Bishop, Consultant Solicitor

The New Face of Divorce – The No Fault Divorce

Boardman, Hawkins & Osborne LLP

As a family solicitor I have been observing the passage through parliament of “The Divorce, Dissolution and Separation Bill”, and was delighted to see that on Wednesday 17th June, despite the current Covid-19 crisis, the bill successfully concluded its journey through the House of Commons.

So what does this all mean and what happens now?

The long awaited change in legislation will bring our divorce laws into the modern world. No longer will the irretrievable breakdown of the marriage need to be evidenced with one or more of the following five facts;

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Two years separation with consent of the Respondent
  • Five years separation.

There will no longer be any option to defend the divorce, and couples will be able to bring a single or a joint application.

Why is this important ?

Any breakdown in a marriage is incredibly emotional and sad, and presents many potentially difficult issues surrounding the marriage, including the finances and the children and the emotional strain is often exacerbated by the divorce petition if based on unreasonable behaviour where allegations of the respondent’s behaviour are in black and white on the petition.

At a time when family solicitors are wanting to calm an inflamed situation, a petition slinging mud about the other party has always been an unwelcome distraction.

And what if there is no “unreasonable behaviour” “adultery” or “desertion”, and the parties are simply no longer compatible and locked in an empty marriage. Currently this can mean that they have to wait two years before they can even start proceedings and that is on the basis that the other party agrees to a petition. If they don’t it is a case of waiting 5 years, an incredibly long time to put your life effectively on hold.

For many years family lawyers have been campaigning to change this archaic method of divorce, and to introduce a more amicable and cleaner way to end the marriage. The topic took on new momentum in 2018 with the widely publicised case of Owens and Owens, where the husband successfully defended the wife’s application for divorce which was based upon his unreasonable behaviour. The upshot being that the wife in her retirement years remained locked in a loveless marriage until 5 years separation could be marked.

Will divorce become too easy ?

it is important to note that this will not produce the “quickie divorce”, and parties will be able to end a marriage too easily. The process will be subject to a timetable, and so when a petition is issued there will be a notice period of 20 weeks from issue before the next stage of the divorce which will be known as the “conditional order” rather than the rather archaic term “decree nisi”. This period will give time for reflection and will also provide an opportunity for the parties to consider the financial settlement and the arrangements for any children. Between the granting of the conditional order and the decree absolute ( now to be known more simply as a final order) there will be a further period of six weeks as we have in the current process.

There are still issues to be ironed out, and there are many who feel that the starting date for the “notice period” should be when the respondent receives the petition, and not the date of issue, to give both parties the same period of time of reflection, and an opportunity to take advice and work constructively to reaching amicable and fair settlements.

When will the changes take place

So the burning question on everyone’s lips is when will this legislation come into force? The indication given have been that the timetable is looking at the Autumn of 2021, rather than when it is given Royal Assent, so to ensure that the new process has time to be carefully thought through and implemented. Of course there is now the added pressure of Covid-19, which could potentially create further delay.

What is for sure is that there is a clear appetite for this change by our profession and the public, and will be a welcome change to our way of practice, which we believe will promote a more constructive and amicable way to end a marriage.

If you wish to discuss a potential divorce please do not hesitate to contact BH&O either by telephone or by email and one of our team will be happy to assist and guide you through the process.

Helen Bishop, BH&O Consultant Solicitor

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