The Return of ‘No Fault’ Divorce

There has been a long-standing intention and an obvious need for the Law that relates to divorce to be reformed. For many years, critics have said that for couples to have to blame each other for the breakdown of their marriage only increases the level of conflict between them at what is often a difficult and emotional time. This can cause resentment between them and colour their discussions and negotiations when it comes to making arrangements for their children and in respect of their money and finances.

What is wrong with current legislation?

The difficulties were highlighted in 2018 following a high-profile decision of the senior courts that concerned a couple who had had been married for 39 years. The wife based her petition for divorce on her husband’s unreasonable behaviour. The husband did not accept the marriage had broken down and argued that any difficulties were routine for any marriage. The Judge rejected the wife’s petition. Her allegations were described as ‘exaggerated’ and ‘minor altercations of a kind to be expected in a marriage’. The decision reignited calls for a reform of divorce law to introduce a no fault divorce system.

Current law in England and Wales does not allow one party to unilaterally decide to divorce because they are unhappy in the marriage. Unless the parties have been separated for more than 2 years, one spouse usually has to allege bad behaviour of some kind on the part of their spouse to prove to the court that the marriage is at a permanent end and broken down irretrievably.

What changes have been proposed?

The Divorce, Dissolution and Separation Bill is intended to remove issues that create conflict within the Divorce process and introduce a minimum time frame before the court makes a conditional divorce. The Bill is also intended to ensure that the decision to divorce is a considered one, reduce family conflict where reconciliation is not possible and bring reform that will directly benefit families by supporting parties to focus on the future. It was first introduced in early 2019 but as a result of the various and many political upheavals of last year never became Law.

In the Queen’s Speech of last month, the Government re-introduced the proposed changes and whilst there is no definite timescale at the moment for this to become Law, as the changes have the support of all political parties, the changes are likely before the end of this year.

The objectives of the Divorce, Dissolution and Separation Bill include:

• Retaining the sole ground of irretrievable breakdown, but replacing the requirement to make an allegation about the other spouse’s conduct or demonstrate a period of separation with the requirement to state to the court that the marriage has irretrievably broken down.
• Introducing a new minimum period of 20 weeks between the start of proceedings and applying for the conditional order (the six-week period between conditional and final order—currently called decree nisi and decree absolute—will remain).
• Introducing a new option for a joint application in cases where the decision is a mutual one.

Similar provisions are proposed to deal with the dissolution of civil partnerships.

In the meantime, although most commentators believe that the current divorce process is archaic and requires reform the reality is that the vast majority of divorces are not defended and even if they are they very rarely go to trial. Most divorcing couples and their lawyers take a realistic view and seek to achieve a fair and timely solution in what can be difficult circumstances. Early legal advice can often resolve potential difficulties before they arise and can result in better outcomes for the separating couple and their family.

For further information regarding this blog, please contact me on 01332 364436 or at a.rose@timms-law.com

Adrian Rose
January 2020