No Fault Divorce – What Does this Mean for You?
Radical changes to the divorce law came into force on 6 April 2022 with the introduction of the “no fault” divorce. The new law aims to update the process for divorce and streamline the divorce process. In this article, Paula Hamilton, Assistant Fee-Earner with experience of family law explains the new law and what it means for those who are seeking a divorce.
The changes to the divorce law follow many years of campaigning by those who felt that the current laws were outdated. For many people who were simply unhappy in their marriages or civil partnerships the old law was unacceptable.
The motivation for these changes comes from the case of Owens v Owens (2018). In this case, the court refused to grant Mrs Owens a divorce, even though her marriage had clearly broken down. She failed to demonstrate that her husband behaved in an unreasonable way and she could not be expected to live with him. The case was appealed to the Supreme Court where it also failed, with Lady Hale stating that “It is not for us to change the law laid down by Parliament – our role is to only interpret and apply the law that the parliament has given us.” The decision inspired widespread publicity due to the unfairness towards Mrs Owens who was forced to remain in a broken-down marriage for five years from the date of separation. Due to the extensive attention, the government published a consultation paper entitled “Reducing family conflict: Reform of the Legal requirements of Divorce”. Following this paper, a Bill was introduced on 12 June 2019 and received Royal Assent on 25 June 2020.
Prior to the new law under the Matrimonial Causes Act (1973) a Petitioner seeking a divorce was required to prove the irretrievable breakdown of the marriage by relying on one of five facts, adultery, unreasonable behaviour, desertion or the passing of either two or five years of separation.
The problem with this is that not every marriage that has broken down has a blame factor and in reality couples simply fall out of love or become incompatible. Therefore, if a couple wished to divorce but did not meet the required separation period then the most commonly relied on fact was unreasonable behaviour. This fact means the blame is placed fully on the respondent and sometimes the only option was for the petitioner to exaggerate behaviour in the hope that the Court would allow the divorce rather than having to wait two years to end the marriage by consent. The court also had the option, as it exercised in Owens v Owens, to refuse to end a marriage on the grounds cited.
In cases where there was an element of domestic abuse the old law allowed the respondents to defend the divorce allowing perpetrators of domestic abuse to prevent the victim obtaining a divorce as long as possible by dragging out proceedings and challenging the contents of the particulars in the petition.
The new law allows the process to be streamlined by removing the five facts and replacing this with a “No Fault” divorce meaning that no facts or reasons must be cited other than simply that the marriage has broken down and a divorce is sought.
Applicants (formally called petitioners) can now obtain a divorce without the respondents consent. Divorcing couples can end their marriage by agreement, either by a joint or separate application, regardless of the length of separation. Respondents can no longer defend a divorce and the court can no longer refuse an application for divorce.
By removing the need to apportion blame and abolishing defended divorces, amicably separating couples can remain on good terms whilst victims of domestic abuse can now pursue a divorce without the respondent being able to control or abuse them further. It also takes away the unfairness Mrs Owens had to endure.
The changes should bring with them a more efficient process, resulting in less work needed to obtain a divorce and therefore likely less costs. The current divorce application fee remains in place at £593.00, although there are people who may be eligible to obtain a full or partial remission of this fee based on their personal financial circumstances.
Whilst online divorces have been available for some time, the reform requires all divorce applications to be conducted via the online portal which should make the whole process quicker and more convenient.
To summarise – changes under the Divorce, Dissolution and Separation Bill 2020
- A statement confirming that the marriage is beyond repair (statement of an irretrievable breakdown) is the only requirement laid out in the new Act for an individual to be granted a divorce. This effectively removes the need to evidence a fault in the other spouse.
- “Decree nisi” will be referred to as “Conditional Decree” and “Decree Absolute” as “Final Decree” of divorce.
- The Act introduces a minimum 26-week timeframe for the completion of divorce proceedings. The conditional decree is granted in 20 weeks, and final decree (which confirms the divorce) is concluded 6 weeks after that. This means that parties will not be expected to wait extensive time periods to formally end their marriage or go through emotional turmoil longer than necessary.
- It will no longer be possible to contest the divorce under the new Act as a statement of an irretrievable breakdown will be determinative.
- A joint application is possible as per this Act, so one party is not limited to bringing the claim and the couple can apply simultaneously.
The introduction of this Act has been a long awaited and necessary to reform the implications of ‘fault divorce’ under the previous laws. Such changes are welcomed in the hope to positively benefit not only the couple, but also their children. Couples will no longer have to wait two years after their separation to file for divorce proceedings and it will no longer be possible for another Owens scenario to occur. The process itself has been significantly simplified and is conducive to a swift resolution, also reducing chances to stir more animosity between couples.
If you would like to discuss your own marital or family situation in confidence, please email firstname.lastname@example.org, telephone 01744 626600 or visit www.frodshams.co.uk
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