No-fault divorce is coming to England and Wales – What you need to know
Married couples in England and Wales could find divorce proceedings quicker and less acrimonious under a new law that allows for divorce without either attributing fault or lengthy separation.
In effect, it removes the adversarial basis of many divorce cases, leading many to call it the biggest change to divorce in 50 years.
Under the current system, the only way to get a divorce without a statutory delay is if one spouse not only initiates proceedings but alleges fault on behalf of the other.
This fault can be one of three things:
- Adultery – If you can prove adultery, you simply need to say you find it intolerable to live together.
- Unreasonable behaviour – In this case, the court has to agree the behaviour makes it unreasonable to expect you to continue living together. Courts have imposed a high threshold, often requiring serious, specific examples.
- Desertion – This can make for particularly complicated legal proceedings. While there’s no statutory delay to the process itself, you can’t start until two years after the desertion.
If you can’t or won’t allege one of these faults, you can only get divorced once you’ve been separated for two years if both spouses agree to the divorce, or five years if one spouse refuses.
Supporters of the changes argue the current system has several major flaws. For example, if a couple wants an amicable divorce without delay, they must agree between themselves who will “take the blame.”
Even if it’s just a legal formality, working out who this should be and the details to present to the court can be an awkward and emotional process.
It can even lead to resentment that spills over into the negotiations about financial settlements and childcare. Indeed, part of the problem is that many people mistakenly believe that admitting to or being held at, the fault will affect a court’s decision on dividing assets.
Of course, not every couple will have the option to avoid this confrontation by going the separation route.
Many find it simply isn’t financially viable to live as two separate households for two years before starting divorce proceedings and formally reaching a financial settlement.
Another problem is with cases where one spouse no longer wants to be in the marriage but the other refuses to accept it is over.
The high bar for proving unreasonable behaviour means one spouse can often drag out the divorce until not only has the other left the marital home, but five years have passed.
This is exactly what happened in a case known as Owens vs Owens where the Supreme Court confirmed the current law.
The Justices noted that while the refusal to allow the divorce was legally correct, it left the wife “trapped in [a] loveless marriage.” They specifically suggested Parliament revisit the issue.
That led to the Divorce, Dissolution and Separation Act which is now law, though isn’t scheduled to take effect until Autumn 2021. The delay is to allow time to revise existing court forms, online processing and other administrative tools.
The basis of the new law remains the same: divorce is only possible when a marriage has irretrievably broken down. However, the definition of an irretrievable breakdown has expanded through two key changes.
The first change is that divorce proceedings no longer have to be initiated by one partner alone.
Instead, a couple can make a joint application. While that may seem like a technical measure, supporters of the new law argue that it removes an in-built imbalance that undermines attempts to split amicably.
The second change is that the current list of five permissible ways to prove the breakdown (adultery, unreasonable behaviour, desertion, agreement after two years’ separation, one party request after five years’ separation) have been replaced by a single mechanism.
Now all that’s required is for at least one spouse to provide a legal statement to say the marriage has broken down irretrievably. This statement counts as conclusive evidence and cannot be contested.
The law does also allow for a joint statement, again increasing the opportunities for a mutual split to avoid artificial imbalances.
The relevant laws on the dissolution of a civil partnership will also be updated. The idea is that broadly the same system and principles, complete with the no-fault declaration of irretrievable breakdown, will apply to both divorce and dissolution.
Parliamentarians also took the opportunity to modernise and simplify some key legal terms in the divorce process. The “petitioner” will now be the “applicant”, with “decree nisi” now simply a conditional order” and “decree absolute” now called a “final order.”
That’s the latest step in a 20-year program of changes to make the language of civil courts more accessible.
While the new law will remove some delays (particularly in amicable divorces), it’s not a case of “instant divorce” as the measures have a built-in cooling-off period.
The law lays down a minimum allowable period of 20 weeks between the initial application and the conditional order, and another six weeks between the conditional and final orders. That means that even the smoothest divorce will take at least six months to complete.
The government says this minimum period not only gives an opportunity for couples to reconcile but also gives breathing room to discuss practical arrangements if the split is inevitable.
The new law doesn’t change the rules on financial settlements or childcare. This means expert legal advice and representation will still remain vital for anyone going through the divorce process.
If you have any questions about the new divorce laws or want to explore your options before they take effect, please feel free to contact us. One of our professional and friendly divorce advisors will be more than happy to help.