Divorce Law in England and Wales has not had any major changes in over 50 years. The Divorce, Dissolution and Separation Bill 2020 has laid out the option of ‘no fault divorce’ for separating couples and it really is a radical and much welcomed change to the law.
The aim of the change is to bring divorce law in England and Wales in line with modern society and to remove the damage caused by one party having to blame the other party for the breakdown of the marriage.
Current Process for Divorce:
Under the current law in England and Wales, for a divorce petition to be successful, it must be demonstrated to the Court that the marriage has “irretrievably broken down.” The party of the marriage starting the divorce process, the Petitioner, must demonstrate the irretrievable breakdown of the marriage by one or more of the following grounds:
– Adultery (not available to rely upon for civil partnership dissolution)
– Unreasonable behaviour
– 2 years separation with consent from the Respondent
– 5 years separation without consent.
Need for reform:
In instances where there is conflict between the parties, the “blame game” can often create further damage in a process already not without stress and difficulty. The Respondent (the other party) is also able to contest the divorce grounds and allegations against them, which can lead to a lengthier, more costly and considerably more stressful process.
Unless the parties have been separated for at least 2 years and both consent to the divorce, the Petitioner is required to make accusations regarding the Respondent’s conduct over the course of the marriage. This blame element can cause unnecessary conflict between the separating couple, particularly where there is no conflict and they have both simply drifted apart. This can be sensibly managed by your Solicitor if they approach the case sensitively from the outset.
No Fault Divorce:
Under The Divorce, Dissolution and Separation Bill, couples will now be able to end their marriage without having to use one of the 5 reasons to demonstrate the marriage has irretrievably broken down. Parties will be able to mutually, or individually, state that the marriage has irretrievably broken down in a statement as part of the application. Spouses will not be able to refuse or challenge the application.
Once the application has been submitted, the parties must wait 20 weeks from the date the Respondent is served with the application before being able to apply for a conditional order. After the conditional order has been granted and a further 6 weeks have elapsed, the Petitioner may apply for a final order, unless financial or children matters are ongoing. The law relating to matrimonial finances and children will not change under the Bill.
The new law is due to be implemented in April 2022 and will considerably simplify the divorce process as follows:
- The option to contest the divorce will be removed
- The application can be made by the Petitioner alone or jointly.
- Although there will still be 3 stages of the divorce process, this will now become: Application for Divorce, Conditional Order (Previously Decree Nisi) and Final Order (Previously Decree Absolute).
- A minimum 20 Week period of reflection will be introduced from the application of the divorce to when the Conditional Order is made. The purpose of which is to allow couples to reflect and work through differences in this time period.
Some have argued that introducing no fault divorce has damaged the sanctity of marriage as couples may not be as careful before entering a marriage if it commonly considered that a divorce can be easily obtained.
There are also concerns that where divorce is much more accessible, couples experiencing difficulties in their marriage could simply seek a divorce rather than working to save their relationship.
However, the aim of the simplified process is to prevent the relationship of the couple from further worsening through the stress and difficulties of separation.
Couples may be more willing to work together constructively to settle the terms of the divorce if there is less contention between the parties which is much easier for all parties, particularly any children, involved.
Should you wait until April 2022 to get divorced ?
Those parties separating and divorcing in the months leading up to April 2022 will fall under the existing divorce route. It would therefore be advisable to seek the guidance of a Solicitor who is accredited with Resolution if you are in the midst of or at the beginning of the divorce process.
Resolution members are committed to the Resolution Code of Practice which adopts and promotes a constructive approach to family issues that considers the needs of the whole family.
Our John Hirst is an accredited member of Resolution and should you need assistance then please contact us to arrange an appointment with him or a member of the team.