Could 2020 be the year of the no-fault divorce?
10 June 2020
Separation and divorce is well on its way to becoming a less traumatic legal experience as MPs voted in favour of the new bill for no-fault divorce.
On 8 June 2020, the Divorce, Dissolution and Separation Bill had its second reading in the House of Commons where MPs voted 231 to 16 in favour of its passing. The bill seeks to ease the stresses of the legal process by removing the need to rely on one of five statutory facts in order to prove that the marriage is at an end thereby avoiding an unnecessary ‘blame game’.
An application for divorce can be made as long as it is possible to prove that a marriage has broken down irretrievably. This must be evidenced by one of five facts:
- unreasonable behaviour
- two years’ separation (with consent of their spouse)
- five years’ separation (without consent).
This leaves many couples either having to wait for two years or puts them in a position in which one of them is forced to provide a list of unreasonable behaviour allegations. At an already difficult time, when couples are often also dealing with financial practicalities and child arrangements, this adds another layer of pressure. The person in receipt of the divorce petition could also obstruct the divorce by refusing to engage with the process because a divorce cannot proceed without the person receiving the divorce petition acknowledging receipt.
The law was brought into sharp focus by the case of Owens v Owens in 2018. Mrs Owens was refused a divorce despite the court finding that her marriage had irretrievably broken down. Her husband contested the divorce and the Supreme Court found she could not prove within the law he had behaved unreasonably and that she would therefore have to wait until they were separated for five years. The court stated that it was the responsibility of Parliament, not the judges, to change the law.
What will change?
The proposed changes are as follows.
- The irretrievable breakdown of marriage to be the sole ground for divorce, to be demonstrated by confirmation from one party, removing the requirement to satisfy one of the five facts.
- Allowing couples to jointly apply for a divorce as well as separately.
- Fewer grounds to contest a divorce (other than on the basis of jurisdiction, the legal validity of the marriage, fraud, coercion or procedural compliance)
- Introduction of a minimum period of 20 weeks from the start of proceedings to the divorce being made final.
- Modernisation of the language used. For example, the terms ‘decree nisi’ and ‘decree absolute’ will be replaced with ‘conditional order’ and ‘final order’.
When will it change?
The bill is now in its last stages and we hope to see it pass this year. Amendments (if any) will be discussed by both the House of Commons and the House of Lords before receiving Royal Assent. However, the end is now in sight for those who have been campaigning for reform of our divorce laws to a more ‘humane’ system.
How will this change help you?
We believe the reforms will reduce conflict and hostility between parties as there will be greater opportunity to end an unhappy marriage collaboratively and amicably. The positive effects of removing the element of blame are likely to be felt by the whole family, and importantly by the children. The cost of divorce should also be reduced as time spent drafting and negotiating the basis of the divorce petition will be eliminated.
If you would like to discuss any of the matters raised above, please contact a member of Birketts’ Family Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2020.