No-fault divorce: are England and Wales ready for a less acrimonious approach to separation?
Mackrell Solicitors, London
The idea of no-fault divorce has been around for a long time. In fact, in the 1990s, Parliament legislated for this change before it was pushed back – only being discussed again and agreed upon in the last half a decade.
For a long time, the divorce process has been too much of a blame game. The current system has remained largely unchanged for an incredible 50 years, the current legislation being contained in the Matrimonial Causes Act 1973.
During this time, the system has required one party to lay the fault of the breakdown of the marriage on his/her partner. This has often instigated conflict within the process, where more often than not, it is not merited.
The traditional grounds for divorce, which range from the ambiguous 'unreasonable behaviour' to the more clear-cut separation of five years, have also lengthened the process when many couples just want a quick, clean split.
The fact that some spouses could not leave their partner without consent or waiting for so long, despite a clear breakdown of their marriage, seemed, to many people, perverse and was the subject of several high-profile and costly court cases.
All this will change as of April this year, as the long-awaited no-fault divorce rules are finally being implemented by the government.
What has changed?
The Divorce, Dissolution and Separation Act 2022 introduces no-fault divorce and will keep the sole ground of divorce as irretrievable breakdown of the relationship, but it removes the requirement to establish one or more facts to prove irretrievable breakdown.
The new rules also update much of the archaic language used within divorce proceedings so that it is easier for couples to understand and deal with the process.
For example, under the new legislation:
- Decree Nisi will become a Conditional Order;
- Decree Absolute will become a Final Order; and
- Petitioner, that is, the person applying for divorce, will become the applicant.
Under the new law, separating spouses will also be able to jointly apply for a divorce order if the couple both agree that the relationship has irretrievably broken down – further reducing conflict.
Where one party wishes to bring an application for divorce, this will also be permitted via a sole application, even if his/her spouse or civil partner does not agree.
An application made by one party will be sufficient grounds to prove that the marriage or civil partnership has suffered an irretrievable breakdown, which means the ability to contest a divorce or dissolution will be abolished.
To give a couple time to plan for the divorce and consider their actions, the new law will also introduce a new minimum period of 20 weeks from the start of proceedings to when the 'Conditional Order' can be made.
The existing six-week period between the Conditional Order (currently the Decree Nisi) being issued and when the Final Order (currently the Decree Absolute) can be made, will remain the same.
It is hoped that this novel approach to divorce will eliminate much of the animosity felt by separating couples, providing a cleaner break.
Can the courts and legal profession cope with this change?
The greatest fear often touted by opponents of no-fault divorce was a sudden spike in cases or the 'throw away' nature of marriage.
While we are yet to get confirmation of any spike in divorce as a result of the new rules, the reality is that most people still see 'sanctity' in the establishment of marriage.
Any rise in divorces will more likely be linked to those who, up until now, have been stuck in a marriage that they haven't been able to leave as they lacked their partner's consent.
Therefore, if we see a spike, we should be careful not to jump to any conclusions, as it may simply indicate that the rules, as envisaged, are working.
The new system of divorce also encourages a more open and less acrimonious approach to relationship breakdown, and should mean that more children and financial issues can be dealt with via mediation or arbitration rather than the family law courts.
The new law requires applications to be made online, and the government is putting in place a new system to deal with this.
In most cases, however, the parties should nevertheless seek independent legal advice to ensure that their needs are met in any financial settlement and assets are fairly split.
For the legal profession and courts, a rise in divorces may not necessarily mean more work, as we are likely to see a shift in the way that divorce is approached, dealt with and managed.
Only time will truly tell how well this new system works, but many within our profession welcome this innovative approach and stand ready to support families.