Divorce can be a very emotionally charged time for separating couples. For many individuals whose aim is to remain amicable and constructive during this difficult time, the current constraints of the existing divorce can be a difficult hurdle in the way of that mindset.
However, a change in law as a result of The Divorce, Dissolution and Separation Bill is on the way to improve the way in which a divorce can be managed. A topic Lindsay Halliwell, Family Solicitor, Divorce and Mediation specialist at Steele Raymond, first addressed in her article: An amicable end is in sight for divorce.
The current legislation governing divorce in England and Wales only allows for an individual to start divorce proceedings immediately by apportioning blame on their spouse for the breakdown of the marriage. In order to prove that the marriage has broken down irretrievably, the only two options available to obtain a divorce before waiting for two years’ separation with consent are for one party (the petitioner) to cite the other’s adultery or to state that the other party has behaved in such a way that the petitioner cannot reasonably be expected to the continue to live with them – often referred to as ‘unreasonable behaviour’. If no fault is to be placed on one party, or if the couple wish to approach the divorce jointly by agreement, the couple must show that they have been living separately and apart for two years or five years where one party does not consent to the divorce.
The introduction of ‘no-fault’ divorce provides for a simplified procedure, with much of the archaic legal language removed, and most importantly allows a route for the couple to move forward without unnecessary conflict.
The new legislation will allow for married couples to make the decision to enter the divorce together and will end the ‘blame game’. The Government has confirmed that the new legislation will come into force on 6 April 2022. Find out how our divorce lawyers can help >
Divorce can be a very emotionally charged time for separating couples. For those whose aim is to remain amicable, agreeable and constructive, the current divorce law does not help. However, a change in law as a result of the Divorce, Dissolution and Separation Act 2020 is on the way.
‘No fault’ divorce will allow married couples to divorce (and civil partners to seek a dissolution) without one having to apportion blame on the other, or wait for separation of at least two years, in cases where parties have jointly decided to seek divorce. The couple will be able to make a joint decision to divorce.
The current legislation governing divorce in England and Wales only allows for an individual to start divorce proceedings immediately by apportioning blame to their spouse for the breakdown of the marriage. In order to prove that the marriage has broken down irretrievably, the only two options available to obtain a divorce before waiting for two years’ separation with consent are for one party (the petitioner) to cite the other’s adultery or to state that the other party has behaved in such a way that the petitioner cannot reasonably be expected to the continue to live with them – often referred to as ‘unreasonable behaviour’. If no fault is to be placed on one party, or if the couple wish to approach the divorce jointly, the couple have to have been living separate and apart for two years, where both parties consent, or five years where one party does not consent to the divorce.
In place of one party attributing blame on the other as a reason for the divorce, or the parties waiting for a minimum of 2 years after separation, the parties can decide together to get divorced by making the application jointly, should they wish to do so.
The second fundamental changes to the legislation is that neither party will be able to contest the divorce. Under current legislation, the ‘respondent’ – the party who receives the petition made by their spouse – has the ability to object to the divorce and, in some cases, can block its progress. Under the new legislation, this will no longer be possible.
The introduction of ‘no-fault’ divorce provides for a simplified procedure, with much of the archaic legal language removed, and most importantly allows the couple to move forward without unnecessary conflict.
The requirement to apportion blame in a divorce, in cases where the divorce is by mutual consent but parties do not wish to wait until they have been separated for over 2 years, often creates or exacerbates acrimony between the parties. This can result in protracted and divisive exchanges to settle matrimonial finances, which may end up being contested in court. The further strain put on the relationship can affect any children of the parties. It is believed that many couples in this position would prefer to deal with the divorce mutually, but the law has, until the introduction of the new legislation, failed to move at pace with societal change.
No – the new legislation will allow for married couples and civil partners to make the decision to enter the divorce or dissolution together, and will end the ‘blame game’. Steele Raymond welcomes the changes, the Family team all being members of Resolution, an organisation of Family lawyers which has campaigned for many years for change to a system under which many couples have experienced the damage that blame in divorce can cause. The new legislation will however not remove the option for one party of the marriage to seek a divorce based on the adultery or behaviour of the other party, importantly leaving that route open in appropriate circumstances.
The Government has confirmed that the new legislation, the Divorce, Dissolution and Separation Act 2020, will come into force on 6 April 2022.
Married couples (including same sex married couples) and civil partners will be able to seek a ‘no-fault’ divorce from 6 April 2022. The new Divorce, Dissolution and Separation Act 2020 will amend the existing legislation in the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 to allow either or both parties to the marriage or civil partnership to seek a divorce or dissolution to their marriage or civil partnership.
The process will introduce a new minimum ‘waiting time’ of 20 weeks from application to proceedings with the divorce, in order to ensure that parties do not proceed lightly with the decision. This ‘period of reflection’ will allow couples to make attempts to save the marriage, should they wish to do so, and prevent hasty decisions. In total, the process will take a minimum of 6 months.
The restriction on applying for a divorce within 1 year of getting married remains.
In order to petition for a ‘no-fault’ divorce, either individually or together, you will need to wait until the introduction of the new Divorce, Dissolution and Separation Act 2020 comes into force on 6 April 2022. However, divorcing parties can still petition for divorce under the current legislation by not attributing fault if they have been separated for over 2 years (and both agree to the divorce) or if they have been separated for over 5 years.
No – the current legislation in governing the division of matrimonial finances (primarily Section 25 of the Matrimonial Causes Act 1973) and the current legislation governing when, where and how often a child shall spend time with each parent (the Children Act 1989) will remain in force governing the legal processes and outcomes of matters concerning financial settlement and child arrangements. The decision of the parties as to how to proceed with their divorce or dissolution of civil partnership, be it by way of a ‘no-fault’ divorce or other, will (except for extreme cases) have no negative bearing on matrimonial finances or children. Indeed, the parties deciding together to obtain a ‘no-fault’ divorce and thus avoiding apportioning blame may well foster a more harmonious outlook in respect of finances and children.
As with the current legislation, parties will be able to apply for divorce themselves, without the assistance of a lawyer. However, the complications surrounding the appropriate and fair division of matrimonial finances and considerations of children of the marriage may require the assistance of an experience family lawyer. These issues will remain when the new divorce law is brought into force.
There is no doubt that making the decision to get divorced is a big and difficult decision. It may also be a decision that you don’t necessarily want but your spouse or civil partner does. The Family team at Steele Raymond will listen to what you want to achieve and advise you on the most appropriate way forward, with a lawyer personally handling your case throughout.
Although the cost of a no fault divorce will vary from case to case, understanding the cost of divorce is important for separating couples. Within the process of a ‘no fault’ divorce there will be certain fees and charges to be aware of, such as court fees and disbursements in addition to your solicitors’ fees which will be discussed with you at the outset of your matter.
Waiting until the introduction of the new legislation is introduced on 6 April 2022 is going to be a matter for personal consideration and will differ according to circumstances. It is always best to discuss matters with an experienced family lawyer before proceeding.
Disclaimer: The information provided in this article is accurate as of 22 June 2022. None of the above constitutes legal advice. Should you require any further information regarding no fault divorce or any other matter relating to a separation or family matter, please contact one of our team.
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