Government announces that No Fault Divorce will become law on 6 April 2022
After a very long journey, and much campaigning over the years, it seems like the wait for no-fault divorces will finally be over on 6 April 2022. The government had originally planned for the Divorce, Dissolution and Separation Act to be implemented in Autumn 2021. While the delay is disappointing, particularly for separating couples that are waiting for the no fault regime to come into play in order to avoid an acrimonious process, the clarity that a set date provides is welcome.
As many who have unfortunately had to navigate the divorce journey will be aware, the act of divorcing has often required one spouse to blame the other. Currently, there is only one ground for divorce in England and Wales: that the marriage has 'broken down irretrievably'. To prove that, the spouse applying for divorce, known as the 'Petitioner', must establish one of five facts. As three of these facts rely on periods of separation of at least two years, many couples, whether divorcing acrimoniously or in more amicable circumstances, must rely on either:
- the other spouse's adultery (if any); or
- the other spouse's unreasonable behaviour.
If the latter, which forms a high percentage of divorce petitions (49% of female petitions and 35% of male petitions in 2019 by opposite sex couples were based on unreasonable behaviour), one person will normally give three to five examples of their spouse's behaviour which show that they have behaved in such a way that the petitioning spouse 'cannot reasonably be expected to live with' them. This leads to an already emotionally difficult process being kickstarted by potentially unedifying allegations from one spouse about the other. The alternative charade is that, normally via solicitor negotiations, the parties agree wording which is suitably anodyne but reaches the threshold that a judge would allow the divorce suit to proceed.
Therefore, the movement to a no-fault regime is highly overdue (and was pushed along by the 2018 Supreme Court case of Owens v Owens, where despite over three years of trying to divorce her husband on the basis of his unreasonable behaviour, the Court found that the statutory test had not been made out by Mrs Owens who had to remain married to her husband).
Under the new legislation, establishing one of the five facts will become a thing of the past. From 6 April 2022 either or both parties to the marriage may apply to the court for an order which dissolves the marriage on the ground that it has broken down irretrievably. There will be a short statement signed by either or both spouses confirming the marriage has broken down and the court must take such a statement as conclusive evidence that the marriage has broken down and allow the divorce to proceed. While some limited challenges to divorce will remain available (e.g. jurisdictional issues and contesting the validity of the marriage in the first place), the new regime will stop divorces being contested by the other spouse (as was achieved by Mr Owens).
The three stages of the divorce process will remain the same albeit with more modern terminology. The Petition/Petitioner will become 'application'/'applicant'. Decree nisi, the first stage of divorce, will become a 'conditional order' and decree absolute, the final stage, will become a 'final order'. The new law will also apply to civil partnerships.
This much simpler and blame-free approach will hopefully allow the process of divorce to be a less painful experience for all involved.
This article was edited by, and published on, www.internationallawoffice.com.
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