Wednesday, August 19th, 2020
After a campaign lasting over 30 years for no-fault Divorce, the Divorce, Dissolution and Separation Bill received Royal Assent on 25 June 2020.
Currently, when petitioning for a divorce, one party must prove that the marriage has irretrievably broken down, by evidencing one of five facts: adultery, unreasonable behaviour, desertion, two years separation with the other party’s consent, or five years separation without their consent. Unless couples are willing to wait for a period of two years separation to elapse before petitioning for a divorce, one party will need to attribute blame to the other for the marriage breakdown by alleging adultery, unreasonable behaviour or desertion.
This new law allowing no-fault divorce means that divorcing couples will no longer need to assign blame if they want to petition for a divorce immediately after separation (provided this is at least one year after the date of marriage). Instead, upon separation, one party can petition for a no-fault divorce and will be required to provide a statement that the marriage has irretrievably broken down. This statement will be conclusive evidence, and as such the Respondent will no longer be able to contest the divorce. Alternatively, if both parties are in mutual agreement that the marriage has broken down, then they can opt to make this a joint statement and application for a no-fault divorce.
Whilst it is often important when separating to obtain early legal advice about financial and children matters (if applicable), removing the ability to contest the divorce could make it even more important for a Respondent to obtain legal advice as early as possible. This is because regardless of their wishes, the Respondent is likely to find themselves divorced after six months unless the Petitioner changes their mind – whereas currently, the Respondent can attempt to draw out the process by contesting the petition which, if successful, will force the Petitioner to wait for a period of 5 years separation to elapse before they can obtain a divorce.
The new legislation will also replace the current ‘Decree Nisi’ with a ‘Conditional Order’, and the ‘Decree Absolute’ with a ‘Final Order’. A six-month minimum waiting period will be introduced, which will include a 20-week waiting period between the start of the proceedings and the granting of a Conditional Order. Where parties have applied for the no-fault divorce jointly, the ‘start of the proceedings’ will be the date on which both parties apply for a divorce. In cases where only one party has applied for a divorce, the ‘start of the proceedings’ will be the date when the notice of an application for a divorce order has been received by the other party to the marriage. Upon receipt of the Conditional Order, there will then be a further waiting period of 6 weeks, after which one party will be required to apply for a Final Order and affirm that they would like the divorce to be made final (as is currently the case when applying for Decree Absolute). This should continue to give parties the power to defer the finalisation of the divorce until financial proceedings have been concluded, which may be desirable if the Final Order is likely to have an impact.
Whilst some have argued that this reform may make divorce too easy and undermine the sanctity of marriage, it should be noted that the requirement for an irretrievable breakdown remains and one or both parties will need to provide a statement to evidence this. Also, with the exception of a small number of cases such as Owens v Owens, the current requirement for fault does not make a divorce hard to obtain as the threshold for unreasonable behaviour is very low. As such, this reform arguably does not make obtaining divorce any easier but simply makes the divorce process less acrimonious.
In addition to this, as noted above, the new legislation will require a party to wait a minimum of 20 weeks from the start of the proceedings before confirming to the court that they would like a Conditional Order to be made, whereas currently, this can be done as soon as the Petitioner has received confirmation from the court that the Respondent agrees to the divorce (which in many cases is likely to be much quicker than 20 weeks – particularly if the divorce was applied for online). This may suggest that the reform does not treat divorce any more lightly as it provides for a minimum waiting period, ensuring that parties have time to reflect on their decision. Moreover, it will give parties the opportunity to sort out future arrangements regarding children and finances which may include, for example, engaging in negotiations between solicitors and having a Consent Order drawn up once an agreement has been reached.
On the other hand, for some this may be viewed as a patronising requirement which arguably implies that parties have not already reflected on and considered the divorce fully, which is unlikely to be the case for most couples. Further, when the new legislation comes into force, the amount of time that parties have already been separated for will not be taken into account. This is likely to affect couples that separated in autumn/winter 2019 and made the decision to wait and petition for a divorce on the basis of two years separation with consent. For example, if parties separated on November 2019, under the current law they will need to wait until November 2021. However, if the new legislation came into in effect just before their two years separation has elapsed, in this instance in October 2021, the option of two years separation with consent will no longer be available, and whilst the parties can alternatively apply for the no-fault divorce jointly, they will now be required to wait a further six months to satisfy the minimum waiting period.
Overall, it is hoped that this reform will end the out-dated blame game, after the ‘Finding Fault’ Nuffield Foundation Report published in 2017 found that 62% of Petitioners and 78% of Respondents believed that using fault had made the separation process more bitter. By removing the blame aspect, it is therefore expected to reduce unnecessary conflict between separating couples and allow for a focus on important issues such as children, property and finances. Further, the new law better reflects modern society where is it accepted that couples may have simply fallen out of love and thus their choice to end the marriage through a no-fault divorce should be respected.
Whilst for many this reform cannot come soon enough, unfortunately there is still quite some time to wait as it is not expected to come into force until Autumn 2021 in order to allow time for careful implementation. Last of all, it is worth noting that commencing divorce proceedings in the meantime under the current legislation will not automatically result in a painful and bitter separation.
At Hanne & Co, we strive to get our clients through the process with minimum animosity and aim to achieve the best outcome for our clients to enable them to move forward with their lives. If you are considering separation and would like advice, please contact us on 020 7228 0017 to speak with our specialist Family & Divorce Team who will be happy to assist.
Kirsty Henderson is a Trainee in Hanne & Co’s Family & Divorce Law Department