The basis of the current divorce law:
Currently, in order to get a divorce in England and Wales, you need to show that your marriage has irretrievably broken down. This is the only ground for divorce and is demonstrated by using one of the following 5 facts:
- That one party to the marriage has committed adultery and the other finds it intolerable to live with them.
- That one party has behaved in such a way that the other cannot reasonably be expected to live with that spouse.
- That one party has deserted the other for a continuous period of at least two years.
- That both parties to the marriage have lived apart for a continuous period of at least two years and both consent to the divorce.
- That both parties have lived apart for a continuous period of at least five years (no consent required).
However, the Divorce, Dissolution and Separation Act 2020 aims to reform the area of divorce law, which includes the introduction of no fault divorce. Therefore, from April 6th 2022 couples can divorce without the need to blame each other for the breakdown of the relationship.
So yes, no fault divorce does now exist, but it has not yet come into effect.
What will change?
Under the new law, the facts set out above will be replaced and instead one or both of the parties need only provide a simple statement which states that the marriage has irretrievably broken down. No further explanation or evidence is required, and parties do not need to raise allegations of adultery, desertion or bad behaviour in order to get a divorce.
Further, the option to ‘defend’ or contest a divorce petition, is essentially removed (other than for jurisdictional, validity or fraud reasons) as the statement of irretrievable breakdown will be taken as conclusive proof that the marriage or civil partnership has indeed broken down.
The two-stage process of a divorce will remain, but a new minimum timetable will be introduced. This timeframe allows for a minimum 6 month period for a divorce and is split into sections, as with the current process. The first period is a minimum of 20 weeks which will run from the start of proceedings to the confirmation from the court that a conditional divorce (previously referred to as Decree Nisi) or dissolution can be made. The second period will remain essentially the same as the current system, where there is a compulsory waiting period of 6 weeks from issue of the conditional divorce to the making of the final order (currently named Decree Absolute). Overall, the new law provides that the process will take a minimum of 26 weeks, or 6 months.
This, in theory, should simplify the process in obtaining a divorce, as there will be no need to file a lengthy petition, but instead a concise statement that the marriage has irretrievably broken down.
There will also be a change in the language used, the terms Decree Nisi and Decree Absolute will be removed and instead replaced with Conditional and Final Order, which should make the process easier to understand.
Why the change?
There has been a long running campaign by those who work in family law and the court system to reform the law around divorce. At present, in order to obtain a divorce, one party must essentially blame the other and lay out the reasons why they are filing for divorce, which can lead to conflict and increased acrimony within what was previously an amicable separation.
The case of Owens v Owens also contributed to this debate and demonstrated the need for divorce law reform. Mrs Owens petitioned for divorce in 2015 on the basis her marriage had irretrievably broken down due to her husband’s unreasonable behaviour; and that she could not be expected to live with him any more. Usually, the court would review the petition and approve the divorce: however, in this matter they took the unusual step of dismissing the petition on the basis they did not believe that there was sufficient evidence that the marriage had irretrievably broken down. Mrs Owens appealed to the Court to Appeal, who upheld the previous decision, and she then appealed to the Supreme Court.
Whilst the Supreme Court also upheld the decision of the lower courts, they agreed it was a troubling outcome that did not sit well with them, but they recognized that it was their place to interpret and apply the law, and not for them to change it.
The only option now available to Mrs Owens, was to wait five years to allow the divorce to proceed without Mr Owens cons’ent, so she was finally able to apply for divorce in 2020.
The case of Owens v Owens highlighted the urgent need for the law surrounding divorce to be reviewed, as until such time as the law was changed, solicitors and petitioners may need to detail more and more reasons to support the petition for divorce, which would in turn increase conflict and animosity, or leave individuals feeling like they have no way out of a marriage in which they no longer wish to be.
The new rules regarding no fault divorce will come into force from early April next year, but in the meantime if you would like to discuss this or any other issue with us, our Family Team offer an initial one-hour initial meeting for a fixed price of £95.00, where they can provide expert legal advice tailored to your individual circumstances.
Get in Touch
If you would like to book a meeting with our team, please call us on 0118 958 and ask for Rebecca (our trainee solicitor, who would be happy to assist), or you can email her at [email protected].