Solicitor Kate Torney looks at the changes to divorce law in England and Wales.
Currently, to obtain a divorce in England and Wales the Petitioner must establish that the marriage has broken down irretrievably by demonstrating one of only five permitted ‘reasons’, these being:
- Unreasonable behaviour
- Adultery
- Desertion, after 2 years
- 2 years separation by consent
- 5 years separation
When either ‘unreasonable behaviour’ or ‘adultery’ is cited in a divorce petition, it is not difficult to imagine the potential acrimony and upset that may follow, in what can already be a stressful and unsettling time. Documenting specific examples of unreasonable behaviour or accusations of adultery to be shared both with your spouse and with the Court is, understandably, a difficult and intrusive task. Whether accepted or denied by the Respondent, allegations of this kind will likely aggravate delicate relations and emotions.
Alternatively, petitioning for a divorce without one party being held to ‘blame’ currently requires the parties to be separated for 2 years if both parties consent to the divorce, or 5 years if one party refuses. In situations where divorce is not possible without waiting the statutory 2 or even 5 years, many spouses are left in a financially or emotionally difficult position.
Divorce Without Acrimony…
Let’s face it, nobody seeks hostility unnecessarily and it seems logical to remove the element of ‘fault’ or ‘blame’ from the divorce process. In submitting a divorce application to the Court, the Petitioner makes very clear their intentions regarding their marriage. There is perhaps little to be gained from apportioning blame or enflaming emotions. Far better, surely, to take a more pragmatic approach to divorce.
‘No-Fault’ Divorce
Various ‘no-fault’ divorce models exist in other countries, including Australia, America, Canada, and China. England and Wales may soon join this list, with the Divorce, Dissolution and Separation Act 2020. The proposed legislation, welcomed by Resolution, received Royal Assent in Parliament in June 2020 and is anticipated to come into force by Autumn 2021.
The new legislation will see the following changes:
- Removal of the requirement to establish one of the five ‘reasons’
- Introduction of ‘joint’ divorce applications by consent
- ‘Sole’ applications still permitted where the other party does not agree
- Removal of the ability of the spouse to contest a divorce
In essence, it will be open to either spouse – jointly or individually – to obtain a divorce without the requirement to make any allegations. Importantly, the draft Act requires that the Court must regard the divorce application ‘to be conclusive evidence that the marriage has broken down irretrievably and must make a Divorce Order accordingly.’
Other notable changes under the Divorce, Dissolution and Separation Act 2020:
- ‘Decree Nisi’ to become ‘Conditional Order’
- ‘Decree Absolute’ to become ‘Final Order’
- ‘Petitioner’ to become ‘Applicant’
- A ‘Divorce Order’ to be either ‘Conditional’ or ‘Final’
- New minimum period of 20 weeks before applying for a ’Conditional Order’ (Decree Nisi)
- Same 6 week period between the ‘Conditional Order’ and when the ‘Final Order (Decree Absolute) can be made
There are certainly interesting times ahead in the field of divorce law.
Lawyers at The Family Law Company are already experienced at guiding their clients through divorce to ensure that the process is as smooth and stress-free as possible. The anticipated introduction of the new legislation will serve to build upon that experience, potentially enabling a yet more practical and less confrontational approach to the divorce process.
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