‘No Fault’ Divorce: The Essentials
Published on 10 March, 2022 | Hannah Baddeley
In a month, the greatest change in divorce law in England and Wales in half a century comes into force.
As things stand – and under legislation which has been in place since 1973 – spouses wanting to divorce need to demonstrate that their marriage has irretrievably broken down.
They are required to do so by proving one of five facts.
A man or woman can divorce after at least two years’ separation – with the consent of their husband or wife – or five years’ separation, even if their spouse’s agreement is not forthcoming.
Otherwise, they must allege that their partner’s conduct (either unreasonable behaviour, adultery or the relatively uncommon claim of desertion) has caused the marriage to collapse.
Of course, pointing the finger at your other half can create significant friction.
When one takes into account the fact that the most recent figures from the Office for National Statistics (ONS) show that just over half (52 per cent) of 107,599 divorces in 2019 were on the grounds of misconduct, the potential for tension is considerable.
In certain instances, such as that involving the Worcestershire couple Hugh and Tini Owens, the respondent spouse might even choose to contest the petition.
Mrs Owens ultimately failed in her attempts to end their 40-year marriage despite apparent agreement that it had broken down (https://www.supremecourt.uk/cases/docs/uksc-2017-0077-judgment.pdf).
One of the Supreme Court judges who deliberated on the matter did suggest, however, that the issues which Mrs Owens had raised merited consideration by parliament about whether a change in the law was necessary.
Ministers subsequently decided that reform was indeed appropriate and the Divorce, Dissolution and Separation Act became law in June 2020 (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted).
Provisions introduced by the Act should have taken effect in autumn last year but were delayed to allow procedural upgrades – notably to the online divorce portal which deals with a growing proportion of divorce petitions – to be completed.
Instead, the new legislation will now be effective from the sixth of April.
The new legislation allows one party to petition on the basis that their marriage has failed without having to apportion blame.
In cases where both spouses agree that is the case, a joint application can be made – something which is not possible under the existing law.
The couple must also wait at least 20 weeks from the date on which the petition is filed at court before being able to apply for the first of two divorce decrees (known as the ‘conditional decree’, it replaces the decree nisi).
That is to allow for reflection and possible reconciliation for couples who have second thoughts about splitting up.
Once the conditional decree is granted, there will be a second period of at least six weeks and one day before divorcing spouses can apply for what is now called the ‘final decree’, the document which replaces the old decree absolute.
Under the new law, there are limited circumstances in which someone can contest a divorce petition. In fact, it will only be possible on three grounds: jurisdictional issues, fraud or coercion.
There is little doubt that the reform means divorce will be easier for the majority of divorcing couples.
In particular, it is hoped that removing the need for spouses to allege misconduct will enable couples to resolve the financial terms of their separations and arrangements for the upbringing of any children involved in an amicable manner.
Nevertheless, the changes will still require some getting used to.
The impact of the changes may also take some time to be felt.
Figures released by the Ministry of Justice show that obtaining the first of two divorce decrees took an average of 26 weeks last year (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2021/family-court-statistics-quarterly-july-to-september-2021).
However, that is just an average. In many instances, the process actually took far less time.
Introducing what has been described as a ‘cooling-off’ period may lengthen the divorce process unnecessarily, especially for those couples who have neither hope nor intention of reconciling.
There is little doubt, though, of the importance of agreeing the terms of a division of marital assets before applying for the final decree.
If you are considering divorce in the coming months and require guidance through what the new ‘no-fault’ law will mean for you, contact one of the lawyers at Hall Brown Family Law for expert, confidential advice.