No fault divorce is something that Resolution, the national family justice body, and its members have been campaigning for over 30 years. On 17th June this year, the campaign achieved its aim and the Divorce, Dissolution and Separation Bill passed through the House of Commons. This landmark piece of legislation will fundamentally change how the divorce process operates in England and Wales, meaning an end to the requirement that couples must assign fault in order to be granted a divorce.
What do the changes mean?
The new legislation has important implications for separating couples and is welcomed by those family lawyers, including our own team at Family Law Partners, who promote dispute resolution to help people end their relationship in a constructive way as possible. The key changes are that:
- Both parties will be able to make a joint application to start the divorce process if they wish (although there will still be the ability for one person to start the process).
- Rather than having to prove a “fact” (more information about this can be found in our factsheet here), the party or parties will simply need to provide a statement that their marriage has broken down irretrievably
- There will no longer be an opportunity for one party to defend the divorce
- There will be a minimum timeframe of six months from the petition until the divorce is finalised.
Resolution’s National Chair, Margaret Heathcote, said:
“Our members have been campaigning for change for years, in Westminster and in towns and cities across the country where they work. They’re all committed to reducing conflict between separating couples, but our outdated divorce laws have meant they’ve been working with one hand tied behind their back.
“This new law will mean they’re better able to support couples to resolve matters as constructively and amicably as possible, minimising the impact on any children they may have.”
When will the new law come into effect?
The current indications are that this change will not come into effect until Autumn 2021 or even early 2022.
What does this mean for a couple who want to get divorced?
Currently, if a couple have been separated for less than two years, the person who starts the divorce (the Petitioner) needs to prove one of the following facts:
- Their spouse (the Respondent) has behaved in such a way that they cannot reasonably be expected to live with them.
- Their spouse (the Respondent) has committed adultery and they find it intolerable to live with them.
In practice, what this often means is that the divorce petition ends up being based upon behaviour, and the contents of the petition are drafted as blandly as possible and agreed with the Respondent. This means that the petition is a document that both the parties can live with and which is able to proceed without it being defended.
However, this takes time and incurs a cost but what it also does is to start the divorce process with the Petitioner being asked to blame the Respondent, and the Respondent having to read this.
As lawyers, it is relatively easy for us to be dispassionate about this process. I have often advised my clients that the divorce process is the means to end the marriage and that it does not matter who starts the divorce because that has no bearing upon the outcome of any financial proceedings.
However, whilst all of this is true (and the petition may be drafted as blandly as possible), there is no getting away from the fact that it is an unnecessarily unpleasant way to begin a process that is often already challenging and emotionally charged.
By removing the need to assign blame will, in my view, help to reduce the conflict that can arise at an early stage which can so often set the tone for the rest of the process.
It will also stop one party from being able to prevent a divorce from taking place. A couple of years ago the case of Owens v Owens was widely reported in the media. It involved a husband who successfully defended his wife’s divorce petition based upon behaviour. This meant that, under the current law, Mrs Owens would not be able to obtain a divorce (at least not without Mr Owens consent) until she and Mr Owens had been separated for 5 years!
This change (once in force) will prevent that from happening. In my view, which is shared by the vast majority of family lawyers, this change is one that is to be welcomed and is one that cannot come into force soon enough.