What is a No-Fault Divorce?

The no-fault divorce bill has now been passed by parliament and has since attained royal assent on 25 June 2020. It is anticipated to be implemented by Autumn 2021.

The need for reform has been the view of many lawyers for years however, more recently, in the case of Owens v Owens [2018] UKSC 41, it was the case that the need for reform was suddenly brought into focus. In this case, Mrs Owens filed a divorce petition on the basis of unreasonable behaviour. Mr Owens managed to defend such allegations, therefore leaving Mrs Owens to remain unhappily married until the time came whereby Mrs Owens could file for a divorce on the basis of 5 years separation without consent.

The current divorce legislation is extremely outdated and contested by many. Resolution, mainly run by a group of family lawyers, have campaigned for a number of years for a no-fault divorce to be introduced on the basis that current legislation is causing further animosity between separating couples. Unless the parties have been separated for a period of two years, and consent to the divorce, or a period of five years if the Respondent does not consent, the Petitioner must essentially blame the Respondent for their actions, as the reason to why the marriage has irretrievably broken down.

The new bill will not change the fundamental principle, but will change how this principle must be established.

Presently, there are 5 factors that can be shown to prove the ground of irreconcilable breakdown of a marriage. These are as follows:

  • Adultery and Intolerability
  • Behaviour (which you find unreasonable)
  • 2 years desertion
  • 2 years separation with consent
  • 5 years separation without consent

It is often the case that many separating couples use behaviour to enable them to get Divorced quickly and to assist them in resolving their financial dispute. There is often a view that bad behaviour will have an impact upon and will be taken into account when calculating a financial settlement between the parties. This is very rarely the case. It is often viewed that blame upon another will be a distraction for the parties and the idea of blaming another may also have an impact upon the children and any future contact arrangements. The no-fault legislation aims to limit such conflict between the parties to ensure the focus remains on reaching a resolution as quickly and amicably as possible.

In the past, Divorce was looked down upon and was extremely rare. However, more recently, relationship breakdowns are considered one of life’s realities, leaving more and more couples separating on a daily basis. The new changes will hopefully mean that this will become easier for couples to separate amicably and without blame (where appropriate).

Key changes to be implemented in the new legislation

  1. No more statement of case

This amendment will remove a major amount of animosity and conflict alone. Within the current divorce petition, when the Petitioner is to use the fact of unreasonable behaviour or adultery and intolerability, a statement of case must be produced. This consists of a number of small paragraphs as to the Respondents actions during the relationship which have resulted in the Petitioner unable to remain married to the Respondent. The new bill will remove this section entirely and will allow couples to apply jointly for a divorce, and should this not be consented, will still allow one party to apply solely.

  1. Removes the ability to contest a divorce

Given the fact no evidence is required to stipulate the relationship has broken down, and the parties/party must instead make a sworn statement that the marriage has irretrievably broken down, the Court is expected to take the statement as conclusive evidence to make an Order.

Presently, it is often the case that although being ‘blamed’, parties will agree to the wording of the statement of case. This, in essence, reduces the amount of contested applications.

  1. Time lines introduced

The new legislation will introduce a 20 week period between the filing of the divorce application, and obtaining the ‘conditional order’ (the Decree Nisi). It shall remain the same that from the first stage (Decree Nisi) until the second stage (Decree Absolute) the parties must wait at least six weeks and one day from the date of the conditional order before filing for the final divorce order.

The new minimum period to obtain a divorce has been increased by three months, and the reason to do this was allow parties to reflect on their marriage and whether the marriage can be reconciled. Lawyers do however, continue to raise questions in this regard and state that the decision to divorce will require reflection and thinking.

Our thoughts

The new no-fault divorce is most definitely, a step in the right direction. It is still the view by many, however, that there is much further to go. It is noted that there is still very little protection for cohabiting couples and other diverse family types.

Should you wish to discuss matrimonial matters with us, please contact Gillian Lavelle or Megan Brookfield who will be happy to assist you.

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