Divorce law shake up: ‘no fault’ divorce from April 2022

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One of the biggest changes in England and Wales family law is one step closer to being put into action. The long-awaited ‘no fault’ divorce is due to come into force on 6th April 2022.

This monumental change in divorce law has been lobbied by family lawyers and professional organisations such as Resolution, The Law Society and mediators for decades. The change means the Divorce, Dissolution and Separation Act 2020 will end the ‘blame game’ for separating couples. From 6th April 2022, couples will be able to divorce without the need to allocate blame.

What are the current grounds for divorce?

Presently, in England and Wales, the law which regulates divorce, the Matrimonial Causes Act 1973, provides only one ground for divorce: that the marriage has ‘irretrievably broken down’. Irretrievable breakdown has to be supported by one of five facts.

The ‘five facts’

The five facts which a divorce petition can be based upon are:

  • Adultery
  • Behaviour
  • Desertion
  • Separation of two years (with consent)
  • Separation of five years (consent not required)

What is the impact of attributing ‘blame’ in divorce?

The breakdown of marriages can have wide ranging effect on couples; often causing distress and grief as a result of the marriage coming to an end. Significant worries about what the impact of the breakdown has on children’s well-being, and concerns about how to manage financially following separation, all have the potential to create an incredibly stressful period of time.

None of the current facts provide for a non-fault or immediate divorce. Petitions based on behaviour or adultery require the Petitioner to draft a statement detailing the wrongdoings of the Respondent, and explain that it was their conduct which led to the breakdown of the marriage.

The impact of providing detailed examples of unreasonable behaviour or adultery often causes distress, embarrassment and can result in unnecessary disputes regarding the content of the petition.

Owens v Owens

The recent case of Owens v Owens [2018] lead to legal practitioners having to advise clients that the examples of unreasonable behaviour have to be significant enough to ensure they pass the court’s own threshold. Objections to the content of a petition can result in a Respondent ‘defending’ the divorce. Defended divorces, whilst rare, result in increasing delays and costs to both parties. Further complications can include both parties filing their own petitions and both petitions proceeding, duplicating the process.

Financial and childcare arrangements

When a marriage ends, parties will usually need to resolve matters and disputes regarding property, finances and arrangements for any children of the family. Keeping conflict to a minimum is important to help parties resolve a number of complex and emotive areas. A legal system which encourages one party to point the finger at the other impacts on divorcing couples’ ability to participate constructively in mediation or to engage in negotiations.

Waiting to divorce

Alternatives for parties seeking a divorce currently have two further options to base a petition upon. Firstly, on the basis they have been separated for at least two years (ignoring any periods of co-habitation of up to six months), and the Respondent takes steps to confirm to the court they consent to the divorce.

Secondly, an Applicant could find themselves in the position of having to wait five years in the event a Respondent is not willing to agree to a divorce based on two years separation, nor are they able to rely the fact of adultery or unreasonable behaviour.

Practically speaking, a delay of five years preventing one party from moving on from a marriage which has sadly come to an end, is not appropriate in a modern society.

On the other hand, waiting for a no-fault divorce will be attractive for separating couples who feel it’s important for their reasons for divorce to be accurately recorded and known. This new divorce law affords couples who are seeking that closure.

How will a no fault divorce work?

The proposed changes to the law are a significant step away from fault-based petitions. From 6th April 2022, parties will be able to apply for a divorce either on a sole or joint basis, and will not be required to base an application for divorce on any ‘fact’, as described above.

Divorcing couples will only be required to confirm that the marriage has broken down irretrievably.

When an application for divorce has started, the court will impose a 20 week wait to allow parties to reflect and consider if they want to progress with the divorce. In the event that they do, they will be required to submit a statement to confirm this.

Change in divorce language

Further changes are due in respect of divorce language; a Decree Nisi will be known as a Conditional Order and a Decree Absolute will be known as a Final Order. These changes are being made to bring the law up-to-date and ensure terminology used is understandable by all.

Currently, work is being undertaken behind the scenes to update all relevant court documents, procedures, practice directions, and amending the online divorce portal to allow parties to apply for a no-fault divorce from 6th April 2022.

Contact our divorce solicitors in Bristol

If you and your partner are considering divorce, our expert family law solicitors can provide practical advice, tailored to your needs. Our family lawyers advise separating couples on every aspect of divorce, from applying for or responding to divorce proceedings to making financial or childcare arrangements.

Our divorce solicitors support clients across the UK from our six offices in Bristol and South Gloucestershire. Call us on 0117 325 2929 or fill out our online enquiry form. Alternatively, get started now by using our simple online tool.

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