The long awaited ‘no fault divorce’ legislation was given Royal Assent and became an Act of Parliament on 25th June 2020. However, it is not yet law and it is not yet possible to bring a divorce using its ‘no fault’ provision. It is anticipated that it will come into force in the autumn of 2021.
The big change
Under the current law one spouse has to bring a Petition against the other proving the irretrievable break down of the marriage by relying on one of five facts. The two facts that permit an immediate divorce are referred to as ‘blame grounds’, being the other person’s adultery or the other person’s behaviour. The remaining three facts require a period of separation to have accrued of either two years or five years. The two year separation ground also has the additional hurdle that the other spouse must give their written consent.
Under the new law, either one or both spouses make a statement that the marriage has irretrievably broken down. The statement is conclusive evidence that the marriage has broken down and the Court must then make a Divorce Order.
A two-stage process
The two-stage process of a divorce has been retained. At the moment, decree nisi is the certification from the Court that the grounds for divorce have been proved and there is then a statutory waiting period of six weeks and one day before the person petitioning can apply for the decree absolute.
Under the new Act the terminology has changed. The first decree will be referred to as a Conditional Divorce Order and the second as a Final Divorce Order, which makes it easier to understand. A new provision is that there must be no less than twenty weeks from the start of the divorce process to the Conditional Divorce Order. The six week period between the Conditional Divorce and the Final Divorce Order is retained.
The majority of divorces already take longer than a total of twenty six weeks, generally because the parties need to work out a financial settlement or the arrangements for their children. However, there were cases where the divorce was concluded in a shorter period – generally with minimal assets or with full agreement because the parties had addressed these issues earlier, and that will now no longer be possible. There is provision for the Court to reduce the twenty week period but no guidance is given as to the circumstances in which this could be considered appropriate.
The whole purpose behind the ‘no fault divorce’ legislation was to remove an unnecessary source of acrimony for divorcing couples. For many years both solicitors and the Courts have tried to encourage people to see the fact proving the irretrievable breakdown of the marriage, particularly adultery or behaviour, as simply being a means to an end. The Courts created the situation where a person could deny the truth of the allegations of behaviour made, but allow the divorce to go through with no adverse consequences. The new legislation removes the artificiality and makes the process more straight forward and less costly in terms of legal fees.
However, simplifying the process of divorce cannot, of itself, remove all acrimony from the divorce proceedings. Most of the time when couples are in dispute it is over the arrangements for their children or the terms of a financial settlement. The number of couples who seriously fought about the wording of the ground on which their divorce was based, was actually very few.
A consequence of the new rules
The ability of the Court to give its approval to a financial agreement reached between the parties only comes into force at the time the Conditional Divorce Order is made. Couples therefore now can be certain that there will be a twenty week period from the start of the proceedings before the Judge can consider and approve their financial agreement. The online divorce process had reduced the time between the start of the process to decree nisi and it may be seen as a slightly retrograde step for this improvement to have been lost. Nevertheless, for many couples it gives certainty and, by and large, the timescale is very similar to that experienced by most divorcing couples.
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.
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