No-fault divorce will be introduced in England and Wales on 6 April 2022. Tim Carpenter and Adrian Clossick examine the current law and explain why this milestone is so important.
We have seen a spike in divorce enquiries due to the tensions the Covid-19 lockdowns have brought to families.
Lockdown has heightened relationship difficulties as spouses and families have been forced to spend increased amounts of time together with little social outlet and distraction. Cracks that had previously been papered over are now being exposed.
Current law
As the law stands, a person petitioning for divorce must blame their spouse for the irretrievable breakdown of their marriage or separate and wait a minimum of two years.
The facts available for the ‘fault’ route are adultery, unreasonable behaviour, or desertion (which is rarely used).
If the parties have been separated for two years, a spouse can divorce their partner without blaming them provided their partner consents to the divorce. If their spouse does not consent, they will need to be separated for five years before a petition can be filed.
Waiting for two years is deeply unattractive for couples who know their marriage is over and want to move on with their lives. Many people are therefore forced to blame their spouse for the breakdown of the marriage so that they can begin the divorce process immediately.
Problematic consequences of the current law
Being forced to go down the ‘fault’ route to begin divorce proceedings can cause unnecessary conflict between the parties and add fuel to what sometimes is already a roaring fire.
Contrary to popular belief, the reasons for divorce have no impact (except in extreme circumstances) on the outcome of the financial proceedings. Being forced to apportion blame can cause tension from the outset and make an amicable financial settlement less likely. This is particularly so if the person being ‘blamed’ for the breakdown of the marriage considers that the blame should go the other way. This requirement to cast blame can undermine the parties’ ongoing relationship and affect their ability to co-parent their children.
The widely publicised case of Owens v Owens illustrates the problems with the current fault-based system and was a catalyst for Parliament to reconsider the long-standing campaign for no-fault divorce.
In that case, Mr Owens defended the divorce petition filed by Mrs Owens, which relied on his unreasonable behaviour. The court dismissed Mrs Owens’ petition as it considered the 27 particulars of behaviour put forward by her not unreasonable enough to prove that the marriage had broken down irretrievably. The court said they were of a kind to be expected in a marriage. As a result, Mrs Owens has been forced to remain married to Mr Owens and must wait five years until she can reapply to divorce.
Some couples who have split amicably are waiting for no-fault divorce to come into effect before issuing their divorce petition. The Divorce, Dissolution and Separation Act 2020, which gives effect to no-fault divorce, was passed in June 2020, and the government will bring it into effect on 6 April 2022.
Changes to the law: no-fault divorce
What is the reform, and how will it change the process?
No-fault divorce will change the process of applying for a divorce in the following ways:
- Instead of relying on facts to prove that the relationship has irretrievably broken down, either or both parties may apply to the court for an order that dissolves the marriage, citing ‘irretrievable breakdown’ as the sole ground for obtaining a divorce. The parties can do this by way of a joint statement or individually.
- It will not be possible to contest the divorce save for contesting the jurisdictional basis of the petition. That will only be relevant in international cases where one of the parties seeks to secure the jurisdiction of another country.
- Plain English will be used to make the process more accessible. For example, ‘decree nisi’, which is the penultimate decree of divorce granted by the court, will change to ‘conditional order’. ‘Decree absolute’, which is the final decree of divorce and legally dissolves the marriage, will change to ‘final order’.
- The process will be simplified to the following stages:
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- the parties file their statement of irretrievable breakdown with the court;
- the parties apply for a conditional order; and
- the parties apply for a final order.
Will it make divorce quicker?
No, this is not the “quickie divorce” some have hoped for. There is a minimum period of 20 weeks from the start of the proceedings to receiving confirmation that a conditional order of divorce may be made. This provides an opportunity for the parties to agree arrangements regarding finances and children. It can also give them time to reflect and an opportunity to reconcile if they choose to do so.
Will it make divorce easier?
Divorce is never easy, but the changes to the law will reduce unnecessary and additional conflict for couples. The ability to divorce jointly and without apportioning blame will enable couples to divorce constructively and focus on the financial issues between them and, in some cases, those relating to their children. It will also avoid unnecessary costs, which might be incurred negotiating the particulars of behaviour for the divorce petition and dealing with a cross-petition if the proceedings are contested.
Will it increase the number of divorces in England and Wales?
There has already been a significant increase in the number of divorce enquiries following the stay at home measures put in place due to the Covid-19 pandemic. Many couples who want to divorce will be waiting for no-fault divorce to come into effect. We anticipate a further spike in cases in Spring and Summer 2022, following the introduction of no-fault divorce next April.
Conclusion
Adrian Clossick, a partner at Stewarts, is a firm supporter of the introduction of no-fault divorce:
“This is a very welcome and long-awaited amendment to the law, which has remained largely unchanged for over 50 years. By taking some of the heat out of the divorce process itself, it is hoped that there will be less acrimony when couples decide that their marriage is at an end. This will allow them to focus in a more dignified way on dealing with the financial issues and the arrangements for their children.”
Faith Wylde and Katie Cruickshank contributed to this article.
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