What does no fault mean for divorcing couples?
No-fault divorce will enable parties to start their divorce journey in a more conciliatory way which should impact positively on how the financial and children aspects of divorce proceedings are litigated.
The current divorce process in England & Wales
As it presently stands, where a divorce is to be sought on the ground of ‘unreasonable behaviour’ the petitioner is required to particularise, in the petition itself, specific examples of the unreasonable behaviour alleged. Similarly, where desertion or adultery is claimed, evidence is required, thereby placing the blame for the breakdown of the marriage firmly on the shoulders of one spouse. Understandably, this increases hostilities between the parties impacting on their ability to move forward amicably in respect of other matters including the arrangements for any children and how their finances should be divided.
The case of Owens v Owens really brought this issue to a head. A summary of the issues at play can be seen from a previous article ‘The Owens case and the Future of Divorce’, read more here.
How will no-fault affect divorce in England and Wales?
The move to ‘no-fault divorce’ will inherently change the landscape of divorce law by removing the need to place the blame on one or other spouse. It is proposed that instead of providing facts and evidence of the breakdown, the petitioner would instead provide a statement to confirm that the marriage had irretrievably broken down. The parties could make a joint application to divorce thereby removing the suggestion that one or other party was responsible.
Changes to the amount of time it takes to get divorced
The time frame between the divorce petition being issued and the Decree Absolute would span a minimum period of six months during which time the parties should reflect on their decision to divorce and ensure that it is what they want to happen. The ability to contest a divorce would also be abolished.
This move towards no-fault divorce is very much in line with the other areas of Family Law wherein mediation, collaborative law and other forms of alternative dispute resolution are being pushed. Acrimonious, costly and emotionally charged court proceedings are being replaced with amicable ways to reach a settlement that best meet the needs of the parties and most importantly the children.
Such methods of resolution create a working relationship between the parties from the outset which will only be a benefit when it comes to future decision making and co-parenting.
It is expected that following a three-month consultation period, this highly awaited new legislation will follow.