What You Need to Know About ‘No Fault’ Divorce
A new bill cited as ‘revolutionising marriage breakup’ is set to change the legal landscape for divorcing couples from autumn 2021.
In June 2020, the Divorce, Dissolution and Separation Bill received its final reading in the House of Commons.
Introduced by the UK government back in 2018, the bill faced several standstills. First, due to the prorogation of Parliament in September 2019. Followed by the general election in December.
Supporters of the bill say that it will stop the ‘blame game’ that is so often seen between divorcing couples by bringing in what is being called ‘no-fault divorce’. Replacing the current 50 year old divorce law that many see as outdated.
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The current system
Under the existing provisions set out in the Matrimonial Causes Act 1973, one spouse must start proceedings by filing for divorce. They must cite grounds for divorce and provide evidence.
There are currently five possible reasons for ending the marriage. Two are separation based, the other three are conduct based. Over the last few years, around 60% of divorces rely on conduct facts.
Current grounds for divorce
Conduct based
Adultery
A person may start divorce proceedings on the grounds that their spouse has committed adultery. They cannot, however, use adultery as grounds if they lived with their spouse (as a couple) for over six months after discovering the adultery.
Unreasonable behaviour
Unreasonable behaviour can be used if their spouse has behaved in such a way that the petitioner cannot reasonably be expected to continue living with them. This might include abuse (physical or verbal), addiction to drugs to alcohol or refusing to pay towards shared expenses.
Desertion
Rarely used, only a very small proportion of divorce petitions in the UK cite desertion as a cause. It involves one spouse having left the other for at least two years before the petition is filed.
Separation based
Two year separation
Where there is no clear blame, a person can file for divorce provided their spouse agrees to it, and they have been separated for at least two years at the time of applying.
Five year separation
Where one spouse contests the divorce, the other spouse can apply without their agreement after they have been separated for at least five years. According to statistics, the ability to contest a divorce is used in under 2% of total cases.
Decree nisi and decree absolute
Provided both parties agree to the divorce petition, the spouse will then need to apply for a decree nisi. It is at this stage that the spouse must detail the reason for the divorce. If the court agrees, the pair receive a decree nisi certificate.
After six weeks and one day, the spouse can then apply for a decree absolute, ending the marriage.
Issues with the current approach
For most people, the natural response to an accusation of poor behaviour is to want to defend themselves. Leading to parties spending unnecessary time and money defending against the reasons for the divorce. This adds more stress to the situation and can negatively affect both participants and their family members.
Children, in particular, suffer when parents are locked in battle. Often leading to long term psychological impact.
For those couples who want to end the marriage on mutual agreement and on good terms, the prospect of waiting two years can make some rethink. Some simply can’t afford to wait. Especially where alternative housing needs to be found and children provided for. Until the divorce is finalised, the court cannot force one party to provide financially. Unwilling to put their lives on hold, many couples will opt for a fault-based cause to get the divorce over and done with.
Finally, there have been concerns over the potential for domestic abusers to trap their spouses in marriage for five years if they contest the divorce. Further exerting their control over them.
How will ‘no-fault’ divorce work?
Shorter time frames
The two-stage process will remain, with couples still having to apply for a decree nisi, followed by the decree absolute. But, new time frames will be imposed. With a minimum time frame of six months from the petition stage to the final divorce being granted. This will provide a ‘meaningful period of reflection’. Giving couples the opportunity to sort practical arrangements or turn back if they wish. Courts will retain the power to speed up the process where they see fit.
Joint filing
Under the proposed legislation, couples can also file for divorce together, if they wish.
Many campaigners and supporters hope that this will help prevent further animosity that so often characterises family breakdown.
No ability to contest
The new law will also remove the ability to contest a divorce. So, spouses will no longer have to wait five years if their spouse doesn’t want to divorce.
Advocates of the bill have stated that the new law will keep what works well while removing potential obstacles to ‘amicable resolution’. It will also change some of the terminology, making it more accessible.
The impact on children
Aidan Jones OBE, Relate’s Chief Executive said:
“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.
As a large body of evidence shows, parental conflict is damaging to children’s wellbeing and chances in life, whether the parents are together or separated. It’s good that the government has listened and taken action on this, demonstrating commitment to reducing parental conflict.
While divorce isn’t a decision that people tend to take lightly, we do support the extension of the minimum timeframe which will allow more time to reflect, give things another go if appropriate, and access support such as relationship counselling or mediation.”
Changing attitudes
Some say that the changes reflect modern attitudes toward marriage in today’s society. They argued that divorce legislation was designed to dissuade couples from separating. Now, however, there is no longer the same stigma attached to divorce as there was when the existing law was created.
Moving towards a conciliatory system
The bill was introduced following a public consultation, with family justice professionals and many with direct experience of divorce, supporting the change.
Scepticism from peers
Some House of Lords peers have expressed scepticism and concern over the bill, warning that it could put some couples at a disadvantage.
Baroness Meacher, speaking on behalf of Baroness Deech argued that the bill will not end conflict in divorce proceedings. Conflict will still exist. She also stated that the proposed shorter time frame might actually be counterproductive, by curtailing the period during which divorcing couples might come to terms with the split and settle important practical issues.
Lord Morrow expressed concern that the bill would result in an increased number of divorces in the UK. Although he did concede that removing the element of fault could make proceedings less ‘acrimonious’. He added:
“On the other hand, I completely understand that if marriage is a lifelong commitment, with all its extensive public policy benefits, there must be constraints on the freedom to exit.
It does not make sense that one should be able to walk out of a serious ‘till death us do part’ commitment unless there has been a serious event, such as adultery, to justify doing so.
My concern is that if we change the law simply to give one party the power to end the marriage just because he or she wants to, it will have the effect of making divorce very much more accessible.”
He argued that the new legislation could discourage couples from fighting to save their marriage.
Others debated whether removing the ability to contest a divorce could infringe on others rights. 83% of those involved in the consultation process disagreed with removing this ability.
Despite concerns from some peers, others voiced their support of the bill. Lord Marks stated there was ‘no credible evidence’ that no fault divorce undermines or weakens marriage. While Baroness Wyld argued that taking away the need for proving fault would make divorce more ‘honest’.
What happens next?
Having finished its journey through the House of Commons, the bill will return to the House of Lords, as both houses must agree on the wording of the bill before it can move to the final stage of Royal Assent, where the Queen signs it into law. This can mean some back and forth between both houses. But, with such strong support for this particular bill, it is unlikely to fail at this stage.
Justice Secretary Robert Buckland said:
“The institution of marriage will always be vitally important, but we must never allow a situation where our laws exacerbate conflict and harm a child’s upbringing. By sparing individuals the need to play the blame game, we are stripping out the needless antagonism this creates so families can better move on with their lives.”
What does ‘no fault divorce’ mean for me?
If you’re considering getting a divorce, the current law is still in place, so the new bill will not impact you. However, if you initiate divorce proceedings after autumn 2021, the new law will apply.
Experienced divorce solicitors in Kent – Ratcliffes
At Ratcliffes Solicitors in Sittingbourne, we understand the complexities and frustrations that can accompany the divorce process. Our family solicitors aim to make getting a divorce as straightforward and stress-free as possible for everyone involved. If you’re considering getting a divorce, we’re here to help. Contact us on 01795 477 505 for expert legal advice from our team of specialist divorce lawyers in Kent.