Fixing a faulty system: ‘No-fault’ divorce explained
‘No Fault’ divorce laws are the biggest change to family law in England and Wales in the last fifty years. The chief aim of these changes to legislation are to reduce conflict between couples during a potentially acrimonious and traumatic time and reduce negative impact on children. It’s a huge, but welcome change to the law that throws up some questions for practitioners and clients alike. We have answered some of them, here:
What is ‘No Fault’ divorce?
‘No fault’ divorce means exactly as it sounds – that no one will be blamed in the divorce process. It is the biggest shake up of divorce in England and Wales in recent history, and will be implemented when the Divorce, Dissolution and Separation Act 2020 comes into force in Spring of 2022.
What is the law now?
The current law (as of July 2021) on divorce is as follows: there is one ground: that your marriage has broken down irretrievably, and five facts that can build a strong inference of that one ground. You only need to argue one of the following Facts:
Adultery
Behaviour such that you cannot reasonably be expected to live with your spouse
Desertion
Two years’ separation with the consent of your spouse
Five years’ separation without the consent of your spouse.
Of these Facts, 3 are ‘fault’ based (1 – 3), whilst 2 are ‘no-fault’ (4 – 5).
What was wrong with this system?
Practitioners and those who have gone through divorce will understand the problems with this system in practice. In theory, ‘fault’ based divorces were designed to act as a deterrent for marital misconduct and prevent so-called ‘quickie’ divorces. In reality, fault-based grounds often lead to unnecessary deterioration of relations as couples make unpleasant allegations.
Many considered that the law was antiquated and that it failed to adequately explain the breakdown of marriages. In fact, one national report found that only 29% of respondents to a fault divorce stated that the fact had very closely matched their reason for the separation. Failure to satisfy the no-fault facts resulted in petitioners having to make allegations against their spouses, which were not necessarily always true. Rebuttals of these allegations were ignored if the case was undefended, potentially pushing respondents to defend petitions on the basis of protesting allegations, rather than attempts to save the marriage.
In 2018, Owens v Owens exemplified the issues with the current law. As commented by the Court of Appeal upon dismissing Mrs Owens’s appeal against refusal for a decree nisi, she was in the difficult position of having to present a petition which is not so anodyne as to be rejected, but not too bold that it may lead to an uncooperative respondent.
Thus, the Divorce, Dissolution and Separation Act 2020 was largely welcomed and celebrated as a long overdue and fairer system.
What will change?
The new Bill is expected to come into force in the Autumn of this year. Its key changes are:
The ground of irretrievable breakdown will remain, but the facts are no longer required.
Instead of the requirement to establish a fact, you will have the option to make the statement of irretrievable breakdown. A statement by one spouse will be conclusive evidence of irretrievable breakdown.
You and your spouse can make a joint application for divorce.
If your spouse does not agree to the divorce, they will not be able to contest it.
The Latin terms ‘Decree Nisi’ and ‘Decree Absolute’ will be replaced with ‘Conditional Divorce Order’ and ‘Final Divorce Order’ respectively.
The total overall notice period will be 26 weeks (20-week minimum period from petition to confirmation of conditional divorce and 6 weeks between conditional and final order).
Divorce is never an easy process, and it is hoped that these changes will minimise the hurt and animosity it can cause.
Should I wait for the new law?
Whether to wait is a personal choice depending on your circumstances. Waiting may be a practical choice if you would rather avoid listing one of the fault-based facts on your petition, or if you are concerned your spouse may not consent. However, your circumstances may be such that waiting is not an option.
How can we help?
If you are considering divorce or dissolution, we are able to provide advice about the process and dealing with the issuing and progressing of undefended and (rarely) defended proceedings. Almost all our cases are dealt with by agreement. Feel free to contact us at enquiries@ribetmyles.co.uk or call us at +44 (0)20 7242 6000.