‘No-Fault’ Divorce: Historic But Only A Halfway Mark
Published on 05 April, 2022 | Claire Reid
Today is an historic day for family law in England and Wales.
It marks the day on which the provisions of the Divorce, Dissolution and Separation Act 2020 (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted) come into force.
Most notable of them all is the removal of the need for spouses to apportion blame for the breakdown of their marriages.
The new ‘no-fault’ system is likely to have benefits for tens of thousands of couples every single year.
I base that assertion on figures published by the Office for National Statistics (ONS) at the start of February, which showed that more than half of the 103,592 divorces in 2020 were granted on the grounds of a spouse’s misconduct
Forty two per cent were on the grounds of unreasonable behaviour with a further 10 per cent of marriages ended amid allegations of adultery.
Even in relatively amicable marriages, the need to point the finger in order to avoid a wait of at least two years for divorce can produce immense strain and create very real conflict.
Yet as I’ve been telling James Beal, the Social Affairs Editor of The Times newspaper, the new regime will not necessarily mean the ‘quickie’ divorce that some commentators have anticipated (https://www.thetimes.co.uk/article/fd644dd6-b43b-11ec-8c29-375fe0cc1f19?shareToken=7aad34f8231b726259d599049d26b46a).
In fact, the introduction of a 20-week ‘cooling-off’ period once a petition is filed and before the first of two divorce decrees can be applied for means there is likely not to be much change in how long the entire process takes.
That period was included in the new legislation to provide the couples involved with “reflection and the chance to reconsider” whether they really want to separate.
For many of those individuals who realise that their relationship has irretrievably broken down, any pause is regarded as an unnecessary delay.
They will have taken the decision to move on with their lives and want to do so as soon as they can.
As pragmatic as most husbands and wives are when it comes to the administration of divorce – that is, obtaining both the conditional and then the final order which formally end their marriages – they are, in my experience, more determined when it comes to dividing their assets.
They know that whatever is agreed in their settlement is what they will take away to start their newly single lives.
It is perhaps no surprise, therefore, that this part of divorce can create particular problems.
Only last month, a House of Lords’ debate identified how important it is to have a legal framework similar to that for divorce decrees to deal with the division of a couple’s wealth.
Baroness Deech, for instance, described the splitting of assets as “the most miserable and litigious part” of divorce, going on to warn that without reform of the rules governing the process “the no-fault divorce law will fail to achieve its aims” (https://hansard.parliament.uk/lords/2022-03-15/debates/BC02FFFB-62A6-4BB6-B6BC-C1EC62CFD46E/No-FaultDivorce).
In response, the Justice Minister Lord Wolfson promised that the Government would honour its earlier commitment to review the relevant law once ‘no-fault’ divorce was fully operational.
The prospect of further legal change on divorce might concern some people. However, just as myself and my colleagues have welcomed the introduction of ‘no-fault’ divorce, we appreciate how couples stand to be better off from a more straightforward system of financial provision.
After all, as Ministry of Justice data indicates, the average time taken to complete a divorce is 55 weeks (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2020#main-points).
Much of that time is taken up with discussions about asset division. It is only when that is done, that couples should apply for the final divorce decree.
Enabling people to do that with greater clarity and speed is arguably in everyone’s favour.
Removing the potential for conflict not only from the initial part of divorce but also from the sometimes tricky negotiations about assets may also help avoid the kind of lingering tensions which can affect relations in the years thereafter.