Ending the blame game
The new divorce law
The Divorce, Dissolution and Separation Act was introduced in to English and Welsh law on 6 April 2022. Also known as ‘no fault’ divorce, the new legislation modernises the divorce process. It removes the need for one spouse to blame the other for the breakdown of a marriage or to separate for at least two years in order to obtain a divorce.
Why has divorce law changed in England and Wales?
The previous divorce process was largely criticised as it did not allow a marriage to end in less than five years unless both parties agreed. In some cases, this meant that people were forced to stay married to an abusive spouse.
The law also led to some decisions which seem to fly in the face of common sense. In the 2018 case of Owens v Owens, the Supreme Court unanimously and famously rejected Mrs Owens’ appeal for a divorce because it decided that her husband’s behaviour had not been sufficiently unreasonable. Therefore, the court would not allow the marriage to be terminated on the basis of Mrs Owens’ divorce petition, even although it was perfectly clear that the marriage had broken down irretrievably.
What are the changes to divorce law?
The new legislation implements a number of changes to divorce law in England and Wales:
1. Couples no longer need to assign blame
Under the new legislation, grounds for divorce will no longer be required. A husband or wife seeking a divorce will simply need to state to the court that their marriage has broken down “irretrievably” and there will be no need to assign blame to one party.
This is a big change and it is why the Act is known as ‘no fault divorce’. Previously, the ‘petitioner’ for divorce had to prove that the marriage had broken down “irretrievably” due to one of the reasons known as grounds for divorce. These reasons were unreasonable behaviour, adultery, desertion for a period of at least two years, separation of at least two years or, if the other party did not agree to the divorce, separation for at least five years.
These reasons meant that it was not possible to obtain a divorce swiftly without accusing the other spouse of adultery or unreasonable behaviour.
2. Evidence of ‘irretrievable breakdown’ will no longer be required
Since the new law removes the requirement to assign blame to one party, couples will no longer be required to provide evidence to the court that their relationship has broken down irretrievably. They will be able to simply make a statement that the court must accept.
3. Joint applications for divorce will be possible
Under the new divorce, a couple will be able to make a joint application for divorce and they will be known as applicant one and applicant two.
Alternatively, one spouse will be able to make a sole application for divorce. They will be known as the applicant and their spouse will be known as the respondent.
Whilst joint applications are encouraged, there are some instances where it might not be appropriate to do so, for example where a party has experienced domestic abuse from the other party or if one party objects to the divorce. Under the new divorce law, the respondent no longer needs to agree to the divorce for it to be processed by the court.
4. The ability for one party to challenge a divorce will be limited
The new law limits the ability of one party to challenge a divorce – which in some cases has allowed domestic abusers to exercise further coercive control over their victim. Divorce and dissolution applications will now only be disputed on jurisdictional grounds, on the validity of the marriage or civil partnership (if it was never valid or if the marriage or civil partnership has already legally ended), in addition to fraud and procedural compliance (for example, the marriage was not formed in accordance with relevant rules and regulations).
Under the new legislation, the spouse who applies for the divorce will have to wait 20 weeks from the start of proceedings before applying for a conditional divorce order. After a further six week weeks, an application can then be made for the final divorce order and once it has been made by the court the marriage will be at an end. The purpose of the 20 week waiting period before a divorce can be made final is to give the parties space to reflect and to give them an opportunity to turn back. Or in cases where divorce is inevitable, it is hoped that the waiting period will better enable couples to cooperate and make arrangements for the future.
The Divorce, Dissolution and Separation Bill is a short piece of legislation, but its effect will be enormous for thousands of families. The requirement under the previous law for one spouse to blame the other in the divorce petition always risked poisoning the atmosphere between divorcing couples, often making it far more difficult for them to reach agreement amicably with respect to financial settlement, and most importantly the future arrangements for caring for their children. We welcome the new divorce law and believe its implementation is in the best interests of everyone involved.