No Fault Divorce on its Way, Finally

On 9th April 2019, the Government announced proposed changes to the divorce law in England and Wales, following a 12 week consultation period from September to December 2018.

Need for blame to go
The changes emphasise that the need for one person to blame the other will disappear.
At present a divorce is granted on the basis that the marriage has irretrievably broken down and that will remain the case. The changes are to how that irretrievable breakdown is proved.

At present one spouse has to state
• Adultery
• Grounds of behaviour
• Desertion
• 2 years separation, to which the other spouse must consent
• 5 years separation

After the changes, all that will be required will be a statement of irretrievable breakdown and, in a wholly new step, couples will be allowed to make a joint application for divorce, if they wish. Where only one person is actively seeking the divorce, the other will no longer have any right to contest that.

Minimum timeframe 6 months
The Government is bringing in a minimum timeframe of 6 months between the petition and the final decree of divorce. The present two stage process of decree nisi and decree absolute is being retained; this makes sense as they are not changing any of the process for the resolution of financial claims where the difference between the decree nisi and decree absolute is important. The decree nisi is the first point at which the court can give its approval or make a final financial order for the couple and the decree absolute makes that order enforceable against a recalcitrant party.

Most divorces, whatever the ground, take at least 6 months from start to finish and frequently longer. Reports in the press that state that divorce on a blame ground can be obtained in 3-6 months are not reflective of the delays presently inherent in the processing of divorce paperwork by the 7 divorce centres around the country. The recent instigation of an online divorce process (for those dealing with the process themselves and not through solicitors) seems anecdotally to be quicker but this may be a honeymoon period and may slow down as usage increases.

Two-part process
The 6 month period will come in two parts – 20 weeks from petition to decree nisi and 6 weeks from nisi to decree absolute (as now). There will still have to be a formal application for the final decree, which will not happen automatically. The applicant will be required to affirm their decision to seek a divorce. This is similar to what happens now.

This sounds like good news and reflects the frequent requests from divorcing couples that they simply want to say that their marriage is over and do not want to cause additional hurt or offence by creating allegations of blame. The Government was pushed into this position by the clear statement of the Supreme Court judges in Owens v Owens in July 2018, that the law as it stood gave them no choice but to refuse Mrs Owens’ application for a divorce on grounds of behaviour, which was contested by her husband.

We have been here before
In 1996, the Government passed legislation (after significant debate and opposition) to remove blame from the divorce process and replace it with set waiting periods which were different for couples with or without minor children. However the new law was never put into force and simply lay on the statute books for years. With the pressures of Brexit, who can say how quickly the Government will be able to put these changes before Parliament but it is expected that they will get a much more positive response today than in 1996.

As in 1996 and also when the law on divorce changed in Scotland, there are warnings that making divorce easier will increase the number of marriages that end in divorce. Even if that happens, it will still be outweighed by the benefit of allowing those who do want to separate and divorce to do so with dignity and co-operation rather than forcing people into a more acrimonious process.

For more information please contact Karen Anker, Family Law & Divorce Solicitor 

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.