‘No Fault Divorce’
There is no such thing as a ‘no fault’ divorce, where both parties can agree to end their marriage without the need to assign blame.
At present the only ground for divorce is that the marriage has broken down irretrievably. In order to prove this a petitioner must satisfy to the court one or more of the five facts, three of which are fault based (adultery, behaviour and desertion), two of the facts relate to periods of separation – namely two years if both parties consent, and five years without consent.
For many couples that wish to separate amicably without waiting two years to apply on the grounds of living separately, unreasonable behaviour is often the only option.
This unfortunately involves assigning blame in order to obtain a divorce and resolve the arrangements arising from their separation.
To keep things as amicable as possible, it is usually best for couples to work together with the support of mediators and or solicitors, to try and agree on what type of unreasonable behaviour should be used in the particulars of the divorce petition. This will allow the divorce process to proceed swiftly. But often a balancing act has to be performed between finding examples which are sufficient enough not to be rejected by the court and not so contentious or inflammatory to lead the other spouse to not cooperate. To add fuel to fire, there is also a common misconception that “fault” will impact on the financial award and therefore parties often do not want to cooperate with the divorce proceedings if they are the party that is being “blamed”.
However, change is on the horizon.
The Government is expected to implement the Divorce, Dissolution and Separation Act 2020 (“The Act”) in autumn 2021. This legislation will introduce ‘no fault divorce’. This will mean that there will be no need to show or prove wrong doing of one of the parties in order to secure a divorce, as well as a judicial separation or civil partnership dissolution.
As you can imagine, this will avoid the acrimony resulting from one party reading about how they have acted so unreasonably that their spouse could no longer reasonably be expected to live with them.
Under The Act, spouses will have the option to make a joint application for divorce, on the basis that they both agree the relationship has irretrievably broken down. By applying in this way, both parties will feel that they are in control and not just a Respondent to legal proceedings.
In cases where spouses are not agreed, a party to the marriage will still be able to apply as a sole applicant. However, what will be different is that their spouse will no longer be able to contest the divorce application. This is one of the most pertinent features of the new divorce procedure, as whilst defended divorce cases are rare, they do happen and to the spouse making the divorce application it is additional, unwanted and expensive litigation.
It is noted that under The Act a divorce application must be accompanied by a statement by the applicant(s) that the marriage has broken down irretrievably. It is not known what form this statement will take but what has been confirmed is that the court must take the statement to be conclusive evidence that the marriage has broken down irretrievably and the court must make a divorce order. Therefore, the court will no longer have the power to reject applications on the basis that they do not think the reasons given are sufficient in proving the marriage has broken down irretrievably. This is a monumental step as, if all the paperwork has been submitted correctly, the court no longer has the power to say no.
Many people reading this blog may think that The Act will increase the number of “quickie divorces”. However, whilst the new system will avoid delays caused by disagreements over the basis of the divorce, there will still be time restrictions in place. You will have to wait 20 weeks from the start of proceedings to when a “Conditional Order” (currently known as Decree Nisi) can be made. In addition, The Act keeps the 6 week period between the Conditional Order and when the Final Divorce Order (currently known as Decree Absolute) can be made. This means that, unless in a particular case the court dealing with the case shortens the time periods, it will take 26 weeks (over 6 months) to finalise a divorce. As many opposed the idea of a no fault divorce, it is likely that these restrictions were implemented as a compromise so that the fear of “quickie divorces” becoming the norm in England and Wales was lessened.
The reality of the modern world is that couples do separate and sorting out the division of assets and arranging the care of the children is often the hardest aspect of ending any marriage. Divorce should not be difficult or place unnecessary and unjust hurdles. Eliminating blame will allow those involved to focus on the main issues. It is an exciting step in bringing divorce, judicial separation and civil partnership dissolution proceedings into the 21st century.
At Prince Evans we can advise you on every aspect of your divorce. To find out more, call us today for a free initial consultation.
Written by Partner & Head of Family Muna Saleem .