Delay on the ‘No Fault Divorce’

The long awaited No Fault Divorce has been delayed even further, following ministers announcing that the Government will now be working on a commencement date of 06 April 2022. This announcement came by way of a response to a Parliamentary question.

In a written response to the question, Courts minister Chris Philip MP stated the “deadline for implementing the provisions of the Divorce, Dissolution and Separation Act 2020 must be put back”. It was stated by Philip that this year’s target was ambitious and relays the fact that such amendments are the biggest reform of divorce law in 50 years.

At least 6 months later than originally indicated, it is understood that by Resolution that this delay may allow the online GOV.UK divorce application to be updated. Despite being informed that the legislation would come into force in Autumn 2021, it carried a lot of uncertainty in terms of specific dates. The new date given by Parliament however is now fixed as a matter of Parliamentary record.

It is understood that work is underway to identify and create the necessary amendments to the Court rules as well as the online service. Philip went on to say:

 “The Ministry of Justice is committed to ensuring that the amended digital service allows for a smooth transition from the existing service which has reformed the way divorce is administered in the Courts and improved the service received by divorcing couples at a traumatic point in their lives. Following detailed design work, it is not clear that these amendments, along with the full and rigorous testing of the new system ahead of the implementation, will not conclude before the end of the year”.

Whilst it is unfortunate for those couples who are awaiting the implementation of such legislation, rather than relying on the current facts of Divorce, ensuring the procedural rules are correct is extremely important. If the rules aren’t fully workable, it would likely cause even further delay to an already lengthy process. As Law Society President Stephanie Boyce said “we welcome the continued commitment to ensuring the reforms are fit for purpose.”

Like to know more about the no fault divorce and what this entails? Contact Gillian Lavelle or Megan Brookfield at 01942 206060.

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, however, no date has been fixed.  

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. It is believed that the petition may come with a Statement of Truth for the parties to sign, and the Court must take the same as conclusive evidence that the marriage has broken down irretrievably.

  • 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.

  • 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 on 01942 206060 who will be happy to assist you.

Stuck In An Unhappy Marriage – Literally

It has been in the headlines recently regarding a couple who wished to Divorce but did not pass the test of unreasonable behaviour and as such the Courts refused to grant them a Decree of Divorce.

The Law

Under the current law in England and Wales, to obtain a Divorce you must prove your marriage has irretrievably broken down based upon one of five facts; adultery, unreasonable behaviour, desertion, two years’ separation with consent of your spouse or, lastly, the only other way to obtain a divorce without your spouse’s consent is to live apart for a period of five years.

Owens v Owens

In this case, Tini Owens, 68, has been denied a divorce from her husband, Hugh Owens. The Supreme Court ruled that a joyless marriage is not a sufficient reason without the consent of both parties.

It is not unusual to hear of couples separating because they’ve fallen out of love or simply don’t see eye to eye anymore. However, the law currently states that these reasons would not be sufficient grounds for a divorce. Mrs Owens petitioned the Court for a divorce in May 2015 based upon unreasonable behaviour claiming that her husband prioritised work over family life, no longer treated her with affection, and was often moody and argumentative. She was denied her divorce as it was said that she hadn’t provided evidence that her marriage had, in the legal sense, irretrievably broken down.

Mr Owens, 80, defended the divorce denying the unreasonable behaviour cited in the petition, and stating that if the marriage had in fact broken down, it was the fault of Mrs Owens, not him.

As Mr Owens would not provide his consent to petition based on 2 years’ separation and after exhausting all of her possible appeal routes, Mrs Owens now has no option but to remain in the marriage until at least the year 2020 when the couple will have been separated for 5 years and the consent of Mr Owens is no longer required for her to divorce him.

The Future

Family Lawyers in England and Wales have been eagerly awaiting the outcome of this case as they have campaigned for a change to the law to introduce a ‘no fault’ divorce so couples who have simply fallen out of love can proceed to issue divorce proceedings. It is hoped that this case will highlight how important a change in the law could be for couples going through divorce so that they can both move on with as little distress as possible.

Keep an eye on Resolutions website and Twitter feed for further updates regarding their campaign for no fault divorce.

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further. McCarthy Bennett Holland are able to offer a free 30 minute initial consultation and are more than happy to assist.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors