After decades of deliberation by the courts and Parliament, 2021 is the year in which we are likely to see the implementation of ‘no-fault’ divorce. This concept will allow married couples to petition for divorce without the need for allocating blame or jumping through hoops to overcome the lengthy time bars imposed under the current system.
The current position
The Matrimonial Causes Act 1973 governs divorce law. To be eligible for a divorce under this regime, amongst other things it must be shown to the court that a marriage has irretrievably broken down. To prove this, the party petitioning (applying) for the divorce will must rely on one of the five facts set out in law:
- Adultery
- Unreasonable behaviour
- Desertion for two years
- Separation for two years with consent of the other party
- Separation for five years without consent of the other party
Facts 1 – 3 require an element of blame. This can of course increase the strain on the parties and may cause additional stress to any children involved. Facts 4 – 5 may in effect act as a ‘no-fault’ basis, however they impose lengthy time periods before they can be relied upon. This is in addition to the 1-year minimum length of marriage before a petition can be made.
At the moment, petitions can also be contested by the other party. This has a dramatic effect on the proceedings which will become increasingly costly and time-consuming, and undoubtedly more stressful for all involved.
New law
Years of campaigning and scrutiny have finally led to the production of a new law in the form of the Divorce, Dissolution and Separation Act 2020. Due to its significance, the government is taking a careful approach in putting it into practice. It is hoped that the new law will be operational by Autumn 2021.
The Act provides a major overhaul to the current law. The most significant effects of the Act are:
- An individual can petition for divorce by making a statement of irretrievable breakdown of the marriage. If both parties agree, they may make this statement and petition jointly.
- The petition cannot be contested or cross-petitioned by the other party.
- The statement of irretrievable breakdown will be conclusive evidence for the court, meaning the petitioner does not need to prove any of the facts set out above.
- There will be a timescale of 20 weeks from the date of the petition to the date the parties can apply for a Conditional Order (currently known as a Decree Nisi). This is intended to give the parties time for ‘meaningful reflection’ where they may attempt to reconciliate or otherwise make arrangements for their separation.
- Following the making of the Conditional Order, there will be a 6-week timescale before the court can make a Final Order (currently known as a Decree Absolute). The parties or the court can postpone the Final Order if necessary, for example where finances are being dealt with at the same time as the divorce.
The Act therefore gives complete freedom to parties to get a divorce providing they meet the procedural requirements. It is thought that by removing the element of blame, or otherwise the requirement to wait 2-5 years after separation, parties will be able to work in a more cooperative way to achieve the desired outcome. Children are often involved in divorce proceedings, and by allowing the 20-week timescale between petition and Conditional Order, the aim is to resolve the practicalities of a divorce if it is not possible to reconciliate. Avoiding the potential for each party to allocate blame and the need to prove wrongdoing is hoped to make the process less distressing and, ideally, less time-consuming and costly. Should there be additional complications such as children and finances, they must still be dealt with using the normal avenues however by removing the tensions caused by the current divorce procedure, it may make it possible for those complications to be dealt with more amicably.
If you wish to discuss no-fault divorce or any other Family matter, please contact our Matrimonial department by calling our Stockton office on 01642 356500 or our Newcastle office on 0191 2322574.
Emily Skillcorn, Trainee Solicitor
