No-fault divorce – an end to the ‘blame game’

Matthew Aves
Partner – Family Law

The current law in relation to divorce dates back almost 50 years to 1973. Although there have been some minor changes to the legislation over the years, the most substantial and wide-reaching amendment to date should come into force in April 2022.

As the law stands, there is only one ground for divorce, which is that the marriage has broken down irretrievably. The person initiating the proceedings has to demonstrate that the marriage has broken down irretrievably relying upon one, or more, of five specified facts. The facts are:

  • Desertion (which no one ever does)
  • Five years separation
  • Two years separation with consent
  • Adultery
  • Behaviour (unreasonable behaviour).

Hence, there is one ground and five ways to prove it. The only immediate facts that individuals can rely on are behaviour and adultery, so, by process of elimination, in the absence of adultery, many individuals are forced into issuing proceedings upon the basis of behaviour irrespective of whether that was their original inclination.

Family lawyers have campaigned for many years to introduce a consensual form of divorce without the need for a separation of two years. There has been a general feeling that the current law can create unnecessary conflicts between couples who want an immediate divorce by forcing one to blame the other for the breakdown of the marriage when, in reality, perhaps, both parties acknowledge that the relationship has simply run its course.

Protocols have been adopted to try and surmount this issue by way of, for instance, agreeing the particulars of a Divorce Petition before it is issued so as to ensure that it does not cause any unnecessary unpleasantness.

These years of campaigning have brought about the anticipated change in the law, which has, unfortunately, been significantly delayed by parliamentary process and, perhaps more recently, by the worldwide pandemic.

The no-fault divorce system is now to be introduced under the divorce, dissolution and separation bill and it is hoped that the new system will be available to use from April 2022. However, it is fair to say that the necessary preparatory work in terms of a legislative and rule framework is not yet complete.

Under the new system, the one ground for divorce will remain. The need for one party to evidence a breakdown by necessarily blaming the other party will be removed.

A joint application by both parties will be available, whereby the couple agree that their relationship has broken down irretrievably and apply jointly for a divorce.

The new system will set a minimum period of 20 weeks from the start of proceedings (a calling off period?) before a Conditional Order (the new name for the old Decree Nisi) can be made but will retain the minimum six-week period between the Conditional Order and the Final Order (currently known as the Decree Absolute).

Assuming that the timetable runs to plan, the new Conditional Orders will therefore be pronounced as from September 2022. During the conditional period, the parties can begin to attend to other issues arising as a result of their relationship breakdown, e.g. in respect of the care of children and financial provision.

It is hoped that this will lead to fewer conflicts which will, hopefully, translate to the other aspects of divorce in relation to children, money, and property.

The dark cloud above and on the horizon, however, is the current drastic underfunding of the judicial system generally. The revision in divorce law provision that has come about since the centralising of divorce issue into regional centres, together with the closing of many local family courts, has, thus far, led to a very serious deterioration in the divorce courts service, with that situation only being worsened by the national pandemic. Certainly, there have been periods over the last two years wherein some local courts have (unfortunately) been barely operating.

For further information on any aspect of relationship breakdown or divorce, please contact the family law team on  01732 747900 or email [email protected]. Warners has offices in Sevenoaks and Tonbridge in Kent.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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