No Fault Divorce – The End of the Blame Game?

Currently in England and Wales if someone wishes to end their marriage and apply for a divorce, they have to rely one of five “facts” to prove that the marriage has irretrievably broken down.

If a couple have not lived together for more than two years, then so long as they both agree, the person seeking a divorce need only state the fact they have lived apart for this period.

In many cases, however, having to wait two years before applying for a divorce is simply intolerable, especially where financial assistance is needed or both parties simply see no reason for prolonging the marriage if they agree it is over.

The difficulty is that if a person wishes to divorce sooner, they have to either accuse the other party of committing adultery or say that the other party has behaved unreasonably. Adultery is hard to prove unless the other person is prepared to admit it. Unreasonable behaviour requires a statement detailing the offending party’s ‘bad behaviour’ in order to convince the Court that it would not be reasonable to expect the petitioner to continue to live with them. In practice, this statement is sent to the responding spouse before the divorce petition is even issued, often causing bitterness, distress and humiliation, which can set the tone for the entire process.

The new Divorce, Dissolution and Separation Act 2020 reforms the divorce process by removing the concept of fault and introducing an option for a joint application. It will also no longer be possible to contest a divorce.

The language used in divorce proceedings will also be simplified to make the process easier to follow. For example, ‘decree nisi’ will be changed to ‘Conditional Order’ and ‘decree absolute’ will be changed to ‘Final Order’.

The aim of the new Act is also to make the divorce process more straightforward , as each petition will have the same format and contain a short statement of irretrievable breakdown, which can simply state that the relationship is no longer working.

All of these changes will also apply to the dissolution of civil partnerships.

The new reforms are much welcomed by the majority of Family practitioners. There are of course those who have concerns that making it easier to obtain a divorce undermines the institution of marriage. However, after a potential spike in the number of divorce petitions being issued, it is likely that the numbers will quickly return to normal. After all, the new divorce process will not increase the number of marital breakdowns, but simply make the process less stressful and less acrimonious, during what is already a difficult time for those involved.

Although the act received Royal Assent in June 2020, the reforms have not yet come into force. The government is currently working on implementing the changes. The new process is expected to be introduced in autumn 2021.

If you wish to know more about how your current situation may be impacted by the divorce reforms, or are looking for advice generally regarding your separation, please contact our Family Team at Leeds Day on 0844 567 2222 or send an email to family@leedsday.co.uk

We have a wealth of experience in dealing with families in conflict and can provide you with support throughout the entire process.


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