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No Fault Divorce – are we nearly there yet?

It’s been a long time coming, but on 2 July 2019 the Divorce, Dissolution and Separation Bill received its second reading in the House of Commons. It’s been hailed as the biggest change to divorce in 50 years – and that’s no understatement, since the law has changed very little since 1969. 

Family lawyers have been among those campaigning for the abolition of fault-based divorce for many years and there’s widespread support for this proposed change. 

When a couple get divorced, the divorce itself is generally speaking a paper-based exercise which brings about the dissolution of the legal relationship. The parties are no longer a married couple, and instead have divorced status. It isn’t legally complex or difficult procedurally if the individuals involved can co-operate, or are prepared to heed the pragmatic advice of their lawyers. Where family lawyers do most of their work and add real value is in relation to the financial consequences of family breakdown and dealing with disputes relating to the children of the family. So why were the lawyers so concerned that the law on the grounds for divorce should change?

Under the current law the ground for divorce is the irretrievable breakdown of the marriage evidenced by: 

  • one party’s adultery 
  • one party’s behaviour being such that the other couldn’t reasonably be expected to live with them (often somewhat inaccurately shortened to “unreasonable behaviour”)
  • the desertion of one party by the other (for two years)
  • a period of 2 years’ separation where the parties agree or 
  • five years’ separation if they don’t agree.

So unless the parties have been separated for at least two years they cannot start the divorce process without blaming the other person. Even couples who have mutually agreed that the marriage is over and both want a divorce cannot apply for one straight away without alleging fault. The result is often that hostility and acrimony increase – people feel criticised and defensive – making it more difficult to resolve financial matters and issues relating to children.   

The new Bill applies to married couples and civil partners. It’ll allow one or both parties to apply for a divorce simply saying the marriage has broken down irretrievably – no other reason is required. 20 weeks later, the court can make a conditional order for divorce (the equivalent of the current decree nisi) provided the party or parties who gave the original notice has confirmed they want the divorce to go ahead. After a further 6 weeks the court can make a final divorce order (the equivalent of the current decree absolute). It won’t be possible to contest a divorce, so if one party wants a divorce, they can have one; there won’t need to be a court hearing to decide whether they are entitled to a divorce. 

There remain some questions about practicalities, such as what will happen if both parties make the original application and only one of them then wants to go ahead, but these will no doubt be ironed out in due course. 

Critics of the Bill say that it will encourage divorce, making it quicker and easier. However the process isn’t going to be quick. The minimum period between making the application and obtaining the decree absolute will be 26 weeks, which is not dissimilar from the current position, which can in theory be faster subject to court backlogs.

The removal of the fault requirement means people will no longer be faced with having to wait for at least 2 years or come up with allegations which the other party is prepared to accept (or not). The beneficiaries of this are not just the parties themselves, but importantly children who are all too frequently caught in the crossfire of unnecessary bitterness. 

Will there be more divorces as a result of the change? David Gauke the Justice Secretary has said that he expects there to be a “spike” in divorces when the new legislation is introduced. That seems quite likely, as those who might otherwise have waited for 2 years before making their divorce application because they don’t want to allege fault will be able to make their application immediately. It seems very unlikely that the change will encourage people to divorce who wouldn’t otherwise have done so, and after the initial “spike” we would anticipate that the rate will revert to something around the current position. Divorce is rarely an easy choice. The application costs £550 and a 26 week staged process safeguards against hasty decision making and still gives parties time to resolve their financial and other arrangements concurrently. The Law Society has suggested that no final order (decree absolute) should be granted until a financial order has been made, unless the parties agree or there is no financial risk to the other party and we would support a safeguard along those lines.

The Bill is now due to have its report stage and third reading on a date to be announced. We look forward to the Bill receiving royal assent and coming into force. 

Published: July 2019

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July 2019

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