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No-fault divorce – for better or for worse?

The new Divorce, Dissolution and Separation Bill allows for no-fault divorce, civil partnership dissolution, and judicial separation. This will lead to a more collaborative, less painful divorce process, explain Family law specialists, Baldish Khatkar and Vivienne Middleton.

We are now one step closer to “no-fault” divorce in England & Wales. The Divorce, Dissolution and Separation Bill received Royal Assent yesterday (30 June 2020), and can therefore be expected to come into effect from mid-2021.

Current divorce framework

The current divorce framework is adversarial, and requires one spouse to blame the other for the marriage breakdown, save for the very limited cases where spouses have already lived apart for two years and agree to a divorce, or have lived apart for more than 5 years. The current process promotes conflict between separating couples.

Divorce reforms

The new reforms, when enacted in law, will give separating spouses a mechanism to dissolve the marriage or civil partnership on an application by one spouse only, or by joint application. In both scenarios, there will be no blame. The process should be quicker and cheaper because disputes in relation to the content of divorce petitions, defended divorce cases, and cross-applications will have no place in the new process.

Whilst reform of what many consider ‘archaic’ divorce laws has been on the political agenda for decades, the bill in its original form came into being in 2017. England and Wales are a long way behind our foreign counterparts including Germany, Canada, and Australia, all of whom adopted a no-fault approach to divorce between 1960 and 2000.

What perhaps spurred the momentum for the Government to finally get the reform over the line this time was the tide of public opinion following the high profile divorce case of Mr and Mrs Owens in 2017 and 2018. The wife was in her late seventies when she sought a divorce, and despite the Court being persuaded that the marriage had irretrievably broken down, the Court refused to grant the decree because the wife had failed to prove her husband’s behaviour was sufficiently unreasonable that she could not reasonably be expected to live with him. Despite the obvious injustice to the wife, the decision was lawful, however, the Supreme Court did invite Parliament to reconsider the law which denied Mrs Owen her divorce.

The Divorce, Dissolution and Separation Bill

The bill offers a simplified approach to divorce, puts consideration of a reconciliation much more centre stage in the process, removes the existing requirement to cite fault, and permits joint divorce applications. In the case of the Owens, it may be a leap too far to expect there to be a joint divorce application, however, one can expect the wife to fare far better under the new law to obtain her divorce.

The new process will retain ‘irretrievable breakdown’ as the sole ground for divorce or dissolution, but this will be demonstrated by one party to the marriage making a confirmatory statement as to this, or in some cases, a joint application by both parties in the marriage. The circumstances in which the application for the divorce or dissolution can be challenged will be very limited. A new minimum 20-week period from starting the process to Decree Nisi (the first stage) will apply. The current 6-week period from Decree Nisi to Absolute, being the final Divorce, is unchanged.  Applications under the new system should take six to eight months to conclude.

Attributing fault

The overwhelming experience of the Lodders Family team who, combined have over 100 years practice, is that for most separating couples, being made to attribute fault introduces conflict, or aggravates an already delicate situation when emotions are often still raw. It is hoped the negative impact on children in separating families will be reduced. This should help family lawyers to support clients to focus on the issues that will be critical for their families, including the future arrangements for the children and the division of their financial assets.

Whilst some commentators have suggested this type of law reform is an attack on the moral fabric of the sanctity and institution of marriage, there is a consensus that a non-confrontational legal process is long overdue.

We anticipate the new procedure will broadly be welcomed by clients, as it will ensure the law is fit for purpose in the 21st century. It will not give rise to the advent of a “quickie divorce”, but it should be less painful and more conducive to a collaborative process. By using a less adversarial route, it is hoped the parties will focus more constructively on the matters in dispute. It should free up the Court to better serve the public.

Issues with divorce reform

There are potential issues with the reforms, nonetheless, such as the fact only the Petitioner can obtain the decree of divorce. Might this allow a controlling spouse to deliberately deny and/or delay an inevitable divorce? The Bill may well be the subject of revision to address this, along with other issues.

What does this mean for couples contemplating a divorce, dissolution, or separation? The no-fault basis is unlikely to become available for at least a year, so the current process will continue to apply until then. They have a choice to either use the current system, or wait until the new law applies.

More information

The skilled, specialist solicitors in Lodders’ Family Law team will guide you and act in your case in an issues focused way to achieve a divorce, dissolution, or separation that seeks to avoid conflict at every juncture, and to mirror as close as is currently possible the no-fault approach of the future law. Please get in touch with Baldish Khatkar on 0121 200 0890 or via email, or Vivienne Middleton on 0121 200 0890 or via email for more information.

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Get in touch...

For more information on the topics covered in this email, contact Baldish Khatkar on 0121 200 0890 or via email, or Vivienne Middleton on 0121 200 0890 or via email.