New legislation will soon enable separated couples to divorce amicably without the need to blame their spouse for the breakdown of their marriage.
There is only one ground for a divorce in this country, which is the irretrievable breakdown of the marriage. As the law stands, in order to prove this, one of five facts must be established. The petitioner (person starting the divorce) needs to prove that there has been fault on the part of the spouse or wait for 2 years to start the divorce. The list of facts that can be relied upon are:
- Unreasonable behaviour; or
- Desertion; or alternatively the petitioner can prove that:
- They have been separated from their spouse for at least 2 years (and their spouse consents to the divorce); or
- They have been separated from their spouse for at least 5 years, regardless of whether their spouse consents to the divorce.
The current law has been widely criticised due to the fact these restrictive rules essentially force one party to blame the other for the breakdown of the marriage, unless the parties are willing to wait 2 years before formally dealing with the divorce. Sometimes this is not practical, and in cases where there are children and family finances to be sorted out, the requirement to blame the other spouse can create increased hostility during an already highly emotional time.
What does ‘No fault’ divorce mean?
A ‘no fault’ divorce will essentially allow couples to end their marriage without the need to prove fault in the breakdown of their marriage.
In the recent high profile case of Owens v Owens, where Mr Owens successfully defended proceedings which were issued by Mrs Owens on the basis of his unreasonable behaviour, the Supreme Court held that she could not divorce her husband until a period of 5 years had elapsed, despite the parties having lived separately and apart since 2015.
Although the new law will retain the two-stage process of a decree nisi, followed by a decree absolute, the divorcing parties will no longer need to prove adultery, unreasonable behaviour or desertion, thereby making it easier for couples to divorce amicably and for the process to finalise more smoothly. Instead, divorcing couples will simply need to provide a statement of irretrievable breakdown to the Court.
The changes in the law will also provide the option for spouses to complete a joint application for divorce. It will also set a minimum timeframe for the proceedings to conclude (i.e. from when the petition is issued until the decree absolute is made) which will be 6 months, although parties would still be required to wait a period of 6 weeks and 1 day from the pronouncement of decree nisi, before applying for the decree absolute to finalise the divorce. Another significant change to be introduced is the removal of the option of one spouse to defend the divorce.
The Chief Executive of the relationship support charity Relate, Aidan Jones, has commented: “This much-needed change to the law is good news for divorcing couples and particularly for any children involved. The outdated fault-based divorce system led parting couples to apportion blame, often resulting in increased animosity and making it harder for ex-partners to develop positive relationships as co-parents.”
The changes to divorce law will also be extended to the law governing the dissolution of a civil partnership.
For further information on the upcoming changes to divorce law, or if you require advice in relation to divorce or financial proceedings, please do not hesitate to contact our Family Solicitor, Tarik Elhadidi, on 0114 281 3636 or firstname.lastname@example.org
Article by: Tarik Elhadidi, Solicitor
Date: 8 August 2019