Posted by Emma McMorrow, Senior Associate
Can I get a “No-fault divorce”? – The answer is on the horizon
The notion of “no fault divorce” is one that has long been promised, but for couples looking to separate without having to apportion blame, it has been frustratingly out of reach.
However pressure for change has been building and it finally looks like the unfairness of the fault based system is set to end.
The reason why so many are so keen for no fault divorce to become a reality relates to the animosity that can be caused by the existing rules. As things stand, one spouse often has to apportion blame when petitioning for divorce in order to demonstrate that the marriage has broken down. It is not hard to imagine how allegations against one another will aggravate an already delicate situation. The additional animosity this can cause has an unnecessary impact on couples and also on any children of the family.
Under the current law, the single ground for divorce is “the irretrievable breakdown of the marriage” and within that, you must establish one of five facts. The facts are:
- unreasonable behaviour
- two years separation with the consent of the other spouse
- or five years separation.
According to the Office of National Statistics, the facts most commonly cited are unreasonable behaviour and adultery. Both are fault based, even if there is mutual agreement to separate.
A clear public interest for reform
In Owens v Owens, a case that heightened public interest in the need for reform, we saw the husband “defend” his wife’s divorce petition, which was based on unreasonable behaviour. He was successful, despite Mrs Owens’ appeals, and she was left with no way out of the marriage except to wait until they had been separated for five years (at which point you may proceed unilaterally). If a system of “no fault divorce” had been in place, she would not be in a position where she was forced to remain married to her estranged husband.
How will the no-fault divorce system work?
In the more common course of events, where neither party defends the divorce petition, a divorce proceeds through two stages, known as Decree Nisi and Decree Absolute. It is the Decree Absolute that legally ends the marriage. These stages will be renamed under the new law, to aid better general understanding of the two stages, and will be known as a Conditional Divorce Order and a Final Divorce Order.
Under the Divorce, Dissolution and Separation Act 2020, couples will, for the first time, be able to apply jointly for a divorce. This is particularly significant where a couple has mutually agreed to separate as there will be no need to introduce the notion of one spouse blaming the other. It will of course still be possible to apply alone and the petitioning spouse will need only provide a “statement of irretrievable breakdown”. This statement will replace the existing facts as conclusive evidence that the court must proceed to grant a divorce. There will be no need to apportion blame, or to set out elaborate examples of behaviour, a process which currently causes much unneeded aggravation. It is hoped that this blame free process will encourage a more amicable divorce procedure.
New provisions will also prevent a situation arising as in the case of Owens v Owens. One spouse will not be able to defend a divorce if the other wishes to proceed. This avoids the unhappy scenario where a spouse remains locked in a marriage that they do not wish to continue.
Minimising emotional stress with a no-fault divorce
It is hoped that these changes will minimise any additional emotional distress for two individuals who will arguably be going through one of the most difficult periods of their lives. When a couple has reached the decision that divorce is the right option for them, it should not be the case that further trauma and animosity is created by the very same process that is supposed to be helping them. The new provisions should help get a difficult process off to a better and more cooperative start and, in some cases, may prevent a further deterioration of the relationship such that a greater number of divorces can be concluded out of court.
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