The UK Government in April 2019 announced that divorce law in England and Wales would be changing, with the introduction of “No-Fault Divorce”. A bill introducing the same in England and Wales had been backed by MPs in 2020. It passed its first hurdle in the Commons by 231 votes to 16 against, following a debate.
No-Fault divorce is due to come into effect in England and Wales w.e.f. April 6, 2022. This means that couples will be able to get divorced without one person needing to lay blame on the other. This change will also apply to civil partnership dissolution.
Many legal professionals feel the current divorce laws are out of date and the changes seek to end the blame game that adds stress and pain onto thousands of couples each year.
Current Grounds for Divorce
Under the current divorce law, 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 established with the court by using one of three reasons for divorce:
- 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 have been separated for two-years if both spouses agree to the divorce, or five-years if one spouse refuses.
The new law will retain the Irretrievable Breakdown of a Marriage as the sole ground for divorce.
How Has Irretrievable Breakdown in Marriage Been Defined?
The new law will replace the requirement to specify one of the five grounds for divorce with a ‘statement of irretrievable breakdown’ – thereby eliminating the requirement to administer any blame. This is the biggest difference between a fault and no-fault divorce.
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. If you have been separated less than 2-years, you will need to either cite adultery or unreasonable behaviour as the reason for the breakdown of your marriage. Parties will still need to be married for at least 1 year before they can apply for a divorce.
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”.
- The “decree nisi” will now be called a conditional order”
- And finally, the “decree absolute” will be 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.
Timelines For No-Fault Divorce
There will remain a two stage process of a divorce but there will be an new notice period of 26-weeks, based on a minimum time frame of 20 weeks from petition to decree nisi (the first order in the divorce proceedings) and then 6-weeks from decree nisi to decree absolute (the second and final order in the divorce proceedings).
The new law has also changed the name of the decrees, essentially removing the old school legal jargon! The first order of the divorce will be known as a ‘conditional order’ and the second will be referred to as a ‘final order’.
Proposed Reform Of Financial Rules
Baroness Deech in the House of Lords has been championing the idea of reform. Her Divorce (Financial Provision) Bill, proposes the following:
- Making the starting point for division of assets on divorce a 50/50 split of the net value of the matrimonial assets acquired during the marriage. Courts could then consider a number of factors, including:
- Any agreement between the parties about ownership of specific property;
- Dissipation of assets
- The needs of children
- Assets acquired before the marriage would be excluded
- Inheritances during the marriage would be ring-fenced unless the needs of one party justified including them in any division
- Maintenance would only be payable for five years
- Statutory recognition of pre and post nuptial agreements
There are many criticisms of the proposed reforms, not least the idea that there could be a ‘one size fits all’ approach to finances when every family’s financial foundations are different. Some also believe the five-year maintenance limit will unfairly penalise a spouse who may have given up a lucrative career to care for children.
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