No Fault Divorce - How does the new divorce law work?
No Fault Divorce- How does the new divorce law work?
The law in relation to divorce in England and Wales has been the same since 1973, and it has been widely criticised for unnecessarily stirring up conflict between the parties.
How can the same system, which encourages amicable negotiations between separating couples, set them off on the wrong footing at the outset? Solicitors, Barristers and organisations such as Resolution have grappled with this concept for decades.
However, there will soon be an end to “the blame game”. No fault divorce is coming…
The Current System
There is one ground for divorce under the current system; which is that the marriage has irretrievably broken down. That said, one of the following five supporting factors needs to be proved: -
- Unreasonable behaviour;
- Desertion of 2 years (with consent);
- 2 years’ separation (with consent); or
- 5 years’ separation (without consent).
The Marriage (Same Sex Couples) Act 2013 was passed in England and Wales in 2014, however same-sex couples are unable to rely upon adultery as a factor under the current system.
In a nutshell, if you are seeking a divorce and your spouse has not committed adultery, or you cannot rely upon adultery as a factor, you are left with no other option than to allege that your spouse has behaved unreasonably, if you feel that waiting up to five years is not an option.
Your spouse is able to defend the petition under the current system, and they are much more likely to do this if they are uncomfortable with the allegations you make. That said, your allegations need to carry enough conviction to persuade the Court that your spouse’s behaviour is such that you cannot reasonably be expected to live with them.
This is a very uncomfortable situation to find yourself in, and it can lead to much more complicated, painful and expensive divorce proceedings if your spouse is upset by them.
Here is an example of how the current system is problematic: -
You and your spouse have recently separated. There has been no adultery. Things are relatively amicable, but you are confident that your spouse will not consent to a divorce. You do not feel able to wait until you have been separated for five years and so your only option is to allege that your spouse has behaved unreasonably.
There are children of the marriage, and you have moved out of the former matrimonial home. You want to be able to negotiate amicably with your spouse in terms of the finances, and maintaining a good relationship with the children is the most important thing of all to you.
You are concerned that making allegations of unreasonable behaviour could cause unnecessary tension between you and your spouse, and that ultimately this may affect your relationship with the children. You are also concerned that your spouse might not enter into financial negotiations with you, if they are aggrieved by the allegations of your choosing.
The New System
Under the new system, only a statement of “irretrievable breakdown” will be required for all marriages, and couples can even file for divorce jointly. The Court fees will not cost any less, but it is hoped that the parties will spend less on solicitors’ and barristers’ fees if the negotiations between them are more amicable, and are not fuelled by acrimony created by the system itself.
Further, following the landmark case of Owens v Owens in 2018, the option to defend a divorce has now been removed entirely. Some of the terminology has also been updated, with the Decree Nisi now known as the “Conditional Order”, and the Decree Absolute as the “Final Order”. This long-awaited reform will enable parties to focus on positive uncoupling rather than promoting hostile finger-pointing.
For years, Solicitors and Barristers have seen the devastating impact that “the blame game” can have on separating couples and their families. It is hoped that being able to say the relationship has simply failed, without holding either person accountable, could ease some of the stress and pain that couples often endure during separation.
There is no such thing as a perfectly amicable divorce; however, the new system seeks to make it easier for couples to settle the terms of their divorce, without getting caught up in long-winded, bitter and expensive legal battles.
No fault divorce is set to come into effect in England and Wales on 6th April 2022.
If you need any advice on divorce law, please contact our team