No Fault divorce

Why is this important to couples? Does this make it easier to divorce? What is changing?

On 25 June 2020 the Divorce, Dissolution and Separation Bill 2020 concluded its legislative passage and received royal assent to become an act of parliament. Family lawyers have been campaigning for many years for the existing divorce legislation of the Matrimonial Causes Act 1973 to be reformed to remove the necessity to prove that one party to the marriage was “to blame” if they wanted to pursue an immediate divorce.

The existing legislation provides that for there to be a divorce the petitioner must prove that the marriage has irretrievably broken down by proving one of five facts namely the others adultery, unreasonable behaviour, or that the couple have been living apart for two years and the respondent consents, two years desertion or five years separation. However if the respondent doesn’t agree or want a divorce then they can challenge and defend making the the petitioner wait for five years.

For me as a family lawyer the most important issues to be resolved upon a separation would be the arrangements in relation to the children and then the financial provision. The vast majority of clients will have thought long and hard before making the emotional decision to separate and will be worried about the children and finances.

So to then be faced with having to cite the others unreasonable behaviour as a reason or adultery which could be disputed by the other spouse places increased pressure and unnecessary stress upon the individual.

In some cases there may be acrimony and despite most lawyers best endeavours this can continue and be protracted by having to set out particulars of unreasonable behaviour which are then disputed. When there are children in the family this leads to damaging future relations which is never a good thing.

I am pleased to say the current requirement to establish a fault will be replaced by the option of one spouse or the couple jointly making a statement of irretrievable breakdown of the marriage.

There is no need to expand upon reasons or to “blame” the other and it is hoped that by eliminating this source of conflict and further removing the other spouses ability to contest a divorce it will provide a more dignified approach. Where one party files a statement of irretrievable breakdown this will be conclusive proof that the marriage is over and the court must make an order.

Will this mean that a “quickie” divorce is possible? There was a fear by those considering the legislation that this would make divorce easier or by quicker, however the legislation introduces a period of 20 weeks from start of proceedings before a conditional divorce order (previously known as a decree nisi) may be made allowing more opportunity to agree practical arrangements. This is a significant extension to the current 6 weeks and a day period.

The language is also set to change with decree nisi being replaced with “conditional divorce order” and decree absolute with “final divorce order”. It is hoped that these changes are more user friendly.

It is anticipated that the implementation will take place from the Autumn 2021 which is quite a way off but with fingers crossed it may happen sooner.

If you have any queries please do let me know.

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