What is ‘no fault divorce’ and what does it mean for divorcing couples?

SA Law Head of Family Law Marilyn Bell gives an update on No fault divorce and explains the Divorce, Dissolution and Separation Bill.

The beginning of 2020 has brought with it the start of the shift in divorce law as the Divorce, Dissolution and Separation Bill re-entered Parliament on 7 January 2020. The purpose for the Bill is to modernise the divorce process and aims to remove the notion of ‘blame’ from the divorce process to allow parties to separate as amicably as possible considering the circumstances.

At present, the divorce law seeks for one party to place the reason of the breakdown of the marriage onto the other party, thus placing the blame solely on them. Even more so, the individual then needs to convince the court that they should be allowed to divorce- that there has been an irretrievable breakdown of the marriage. By doing this, they need to rely on one of five facts of adultery, unreasonable behaviour, desertion, 2 years separation with consent or 5 years separation. Unless you wish to wait to divorce until you have been living apart for at least two years, then you must prove that either your spouse has behaved so unreasonably that you cannot be expected to live with them, or that your spouse has committed adultery. Both of these facts do little to reduce the acrimony in situations that are already highly stressful.

Another aspect of the current divorce law which doesn’t sit right with many people is the possibility for the other party to defend the divorce.

Due to the contentious nature of the current divorce law, talk of changing the law first began in April 2018 but the Divorce, Dissolution and Separation Bill wasn’t introduced to the House of Commons until June 2019 by the then Justice Secretary, David Gauke.

The Bill allows for the retention of irretrievable breakdown as the sole ground of divorce but made away with the need to establish any facts which led to the irretrievable breakdown of marriage. Instead, the parties are to file a statement of irretrievable breakdown with the court. The Bill also removes the option of the other party defending the divorce, much to the delight of the campaigners. Another aspect of the Bill is the allowance for a minimum ‘cooling off’ period of 20 weeks between initiating the proceedings and the date the court confirms the parties’ are entitled to a divorce which provides parties with an option to reflect on the possibility of a reconciliation. Where this is not possible, it allows ample time for parties to agree practical arrangements for the future. Where the decision to divorce is mutual, the Bill also has a provision for parties to make a joint application to divorce.

It is unclear as to when the Bill will become law. When parliament was suspended in September 2019, 12 high profile bills were dropped automatically, including the Divorce, Dissolution and Separation Bill which halted the progress of the Bill.

To the relief of many, the Queens speech then indicated the re-emergence of the Bill and following the general election, the government reintroduced the Divorce, Dissolution and Separation Bill to Parliament. Currently, the second reading in the House of Lords is due to take place on 5 February 2020. The Bill has significant cross-party support so it is hoped that the Bill will pass with ease and become law, allowing for individuals to divorce more amicably than the current law allows.

CONTACT MARILYN

If you would like more information or advice relating to this article or a Family law matter, please do not hesitate to contact Marilyn Bell on 01727 798066 or 07725 372256. 

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