A monumental and long-awaited development in family law takes place on 6 April 2022 – the introduction of ‘no-fault’ divorce. Hopefully this long overdue change will end the divisive blame game that is currently the basis of divorce proceedings, to allow couples to focus on important issues such as children, property and finance.
Where are we now?
Until now, parties have had to rely on one of five facts to prove that their relationship has “irretrievably broken down." The facts being adultery, unreasonable behaviour, desertion, two years’ separation with consent or five years’ separation without consent. By far the most common fact to be relied upon is unreasonable behaviour, as a kind of ‘catch all’ basis where none of the other more specific facts have applied.
Parties, in a bid to ensure they meet the threshold for unreasonable behaviour, are required to detail several examples of how their spouse has acted so unreasonably that they cannot be expected to remain married to them. This has been the requirement for even those couples who wish to part ways amicably and, understandably, creating a legal document listing the other’s downfalls can turn a previously amicable split into an acrimonious one.
As a result, the current system has created an unhelpful adversarial process from the beginning. Each party’s respective blame for the breakdown of the marriage (the past) is largely irrelevant during the process of dividing assets and determining child arrangements (the future). The impact of this approach is most damaging where children are involved.
A simpler system
Whilst the new law will retain the irretrievable breakdown of the marriage as the sole ground of divorce, all that will be required to start proceedings is a simple statement to this effect. This means someone can divorce simply because they are very unhappy in their marriage. There will be no requirement to prove this using one of the five facts or to provide evidence. The hope is that this will stop divorcing couples having to make unnecessary allegations against each other, allowing them to focus on separating amicably and moving on with their lives.
Also, where the divorce is by mutual agreement, there will be provision for both parties to make a joint application - rather than having to decide who will be the petitioner, which can be inflammatory in itself.
Further, parties will no longer be able to defend a divorce by disagreeing with the examples provided; the court will take one party’s assertion that the marriage has irretrievably broken down as sufficient for issuing the divorce. Although rare under the current system, defended proceedings can be time consuming and costly, and can be used to exert coercive control by trapping a spouse in a marriage.
The language used in proceedings is also being simplified in a bid to make it more user-friendly – the divorce petition will now simply be an ‘application,’ the petitioner will be termed ‘applicant’ and decree nisi becomes ‘conditional order’ with decree absolute changing to ‘final order.’
A 20-week ‘cooling off period’ is being introduced between the start of proceedings and the conditional order, and another six weeks before the final order can be made. This means that even smooth divorces will take at least six months, which, it is hoped, will allow couples opportunity for reflection, and time to plan and agree future arrangements if reconciliation is not possible.
It is worth bearing in mind that, whilst no-fault divorce will simplify the initiation of proceedings, the principles applied to financial settlements and children agreements will largely remain the same. Those thinking of waiting until the new law comes into effect will benefit from seeking advice on their specific circumstances in advance of 6 April, so they are ready to proceed when the no fault system comes into force.
For those wanting to conduct proceedings under the current system, there is likely to be a cut-off date, probably towards the end of March, after which applications under the current law can no longer be made.
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