Ending the blame game

The future of divorce law

The Divorce, Dissolution and Separation Bill received an MP backing of 231:16. Hailed as the “no fault” divorce Bill, this proposed legislation will overhaul the 50 year old system which forces one spouse to blame the other for the breakdown of a marriage in order to obtain a divorce.

It is possible that the Bill could complete all its Parliamentary stages this week ready to receive the Royal Assent and whilst we do not yet know exactly when the new law will come into effect, we are already getting enquiries about the proposed legislation and how it will differ from the current system.

So what will a no-fault divorce look like?

The proposed legislation will implement a number of changes to divorce law in England and Wales:

1. Grounds for divorce

Currently a petitioner for divorce has to prove that the marriage has broken down “irretrievably” due to one of five facts, i.e. reasons. Three of these are fault-based and two are non fault-based.

a) Fault-based reasons for divorce

The three fault-based reasons are:

1. Unreasonable behaviour;
2. Adultery; and
3. Desertion of one party by the other for a period of at least two years.

b) Non fault-based reasons

The two reasons which do not involve blame are:

1. Separation for a period of at least two years with mutual consent;
2. Separation for a period of at least five years where it is not necessary for the other party to agree to the divorce.

Currently therefore it is not possible to obtain a divorce swiftly without accusing the other spouse of adultery or unreasonable behaviour.

In cases where people have not wanted to wait for a period of two or five years to elapse before seeking a divorce, the most common way forward has been for a divorce petition to be presented to the court based on allegations of unreasonable behaviour by the other spouse. This has of course been unpleasant both for the petitioner who has to make the allegations in the divorce petition and for the other spouse who has to read them.

The current law has 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.

Under the proposed legislation, a husband or wife seeking a divorce will simply need to state to the court that their marriage has broken down “irretrievably” and there is no requirement to prove that statement by submitting evidence. Except in very unusual circumstances, the court will simply be required to take this statement as conclusive proof that the marriage has broken down irretrievably and that a divorce order should be made.

2. Timings

Under the proposed 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 26 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.

3. Joint applications

It will also be possible under the new law for both parties to make a joint application to the court for a divorce so that one party does not have to make the application “against” the other.

Conclusion

The Divorce, Dissolution and Separation Bill is a short piece of legislation, but its effect will be enormous for thousands of families in the future. The requirement under the current law for one spouse to blame the other in the divorce petition has always risked poisoning the atmosphere between divorcing couples thereby 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. It must be in the interests of everyone for this new divorce law to begin operation as soon as possible.

Contact a divorce solicitor

For further information about this article and divorce or family law generally, please contact our expert team.