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New No Fault Divorce Law

View profile for Mary Chilinski
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New “No Fault” divorce law aims to revolutionise and streamline the divorce process

Radical changes are on the legal horizon with the introduction of the “No Fault” divorce imminently coming into force on 6 April 2022.  But what will this actually mean for divorce going forward? 

In order to understand the changes, it is necessary to consider the current state of the law and the problems with it which have led to the need for major overhaul.

The only ground for divorce is that a marriage has irretrievably broken down and a divorce can only be applied for after at least one year has passed since the date of the marriage.

Since the Matrimonial Causes Act came into force in 1973, a Petitioner seeking a divorce has been required to prove the irretrievable breakdown of the marriage by relying on one of five facts: that the Respondent had committed adultery, that the Respondent’s behaviour was such that it would be unreasonable for the Petitioner to be expected to continue to live with them, that two years had passed since separation (if both spouses consented), that the Respondent had deserted the Petitioner for at least two years, or if five years had passed since separation (whether or not the Respondent consented to a divorce).

Two of the five facts lay blame at the feet of the Respondent, whilst the remaining three require a period of at least two years’ separation.  If adultery is not relevant and a Petitioner does not wish to wait at least two years to divorce, essentially their only option is to throw shade upon their spouse in their Petition and seek to persuade the Court that the Respondent is to blame for the breakdown of the marriage by virtue of their behaviour.

Behaviour is the most commonly fact relied upon, with 46.5% of divorces in 2019 being sought on this fact .  Whilst no marriage is completely plain sailing, it is not always as clear cut as the Respondent being fully to blame and the Petitioner being the epitome of innocence.  However, the current legislation essentially requires the Petitioner to give this impression in their Petition.

In reality, many couples simply fall out of love or become incompatible over time and split amicably, but the current law does not provide for a divorce on this basis unless the parties endure the two year separation period to then divorce by consent.  Many people do not wish to wait that long and want the marriage to be ended so they can move on with their lives.  

As the current law confers the Court power to refuse a divorce where the behaviour cited is not deemed sufficient to warrant ending the marriage, Petitions need to be worded carefully to strike the balance between blaming the Respondent and also persuading the Court to grant a divorce.

In cases where the parties have grown apart with little or no major incidents between, sometimes Petitioners feel that their only option is to exaggerate behaviours cited in the hope that the Court will allow a divorce rather than having to wait two years to end their marriage by consent.  Even if Petitioners do wait the two years, there is nothing to stop the Respondent refusing to consent.  This results in the Petitioner either then having to rely upon their ex-partner’s behaviour, which they could have done from the outset and essentially having now wasted two years, or having to endure a further wait until the five year period is reached.

Some marriages end because of severe issues between the parties, notably due to domestic abuse, in which case the Petitioner does not usually have to think too hard to come up with genuine examples of the Respondent’s behaviour.

But the current law allows Respondents to defend a divorce Petition.  Whilst the legislative purpose of defending a divorce means that a Respondent can contest if they do not wish for their marriage to be legally ended or wish to reconcile, more commonly Respondents tend to defend Petitions because they take issue with the Petitioner blaming them for the marriage breakdown.  Defended divorce proceedings are lengthy, expensive and can be manipulated by perpetrators of domestic abuse to prevent Petitioners obtaining a divorce for as long as possible by dragging out proceedings in challenging the content of a Petition.  

Petitioners who have gathered the strength to liberate themselves from unhappy marriages can therefore find themselves trapped in marital limbo by the current state of the law; effectively remaining controlled by their abusive ex-partners who defend the Petition or refuse to consent to two years’ separation.  For many, the current legislation essentially renders them subject to domestic abuse post-separation.

This issue garnered national attention in the case of Owens v Owens which hit the headlines in 2018.  The Supreme Court was tasked with considering whether Mrs Owen should be granted a divorce after Mr Owens defended her Petition as he objected to the particulars cited within it.  The Court ultimately refused the divorce, determining that Mrs Owens had not proven that her husband’s behaviour was unreasonable within the statutory definition.  As Mr Owens refused to consent to a divorce on two years’ separation, the requirements of the current divorce legislation left Mrs Owens unable to pursue a divorce until five years had passed since their split.

The case incited uproar among professionals and the public alike, highlighting the need for urgent change to avoid even more people from ending up in the same unfortunate position as Mrs Owens.

Parliament took on board the outcry to rework the divorce law and finally, the eagerly awaited “No Fault” divorce will be welcomed into force on 6 April 2022.  

The reforms aim to overhaul and streamline the divorce process by removing the five facts and replacing this with a blanket “No Fault” divorce, meaning that no facts or reasons have to be cited other than simply that a divorce is sought.  Petitioners, henceforth to be called Applicants, can now obtain a divorce without the Respondent’s consent from the outset.  Divorcing couples will now be able to end their marriage by agreement, either by joint or separate application, regardless of the length of separation.  Respondents can no longer defend divorces and the Court can no longer refuse an application for divorce.

By removing the need to apportion blame and abolishing defended divorces, no one ever should now ever have to suffer as Mrs Owens and countless others have.  Amicably separating couples can remain on good terms whilst victims of domestic abuse can now pursue a divorce without the Respondent being able to control and abuse them any further.

The changes set out a much more efficient process, resulting in less work being needed to obtain a divorce and therefore, likely less costs.  The current Court fee for filing a divorce application is £593, although many people can obtain a full or partial remission based on their individual financial circumstances.

Whilst online divorces have been available for some time, the reform requires all Divorce Applications to now be conducted via the online Divorce Portal.   In today’s digital age this should render the application process much quicker, more accessible and convenient.  The divorce application itself has been condensed into a simple online application and predicted timescales are now at around 4-6 months from issuing the application to concluding the divorce whereas divorces were lasting upwards of nine months on the old paper-based system.  

At Family Law Group we offer fixed fee divorces, exclusive of disbursements, such as the Court fee.

Whether you are seeking to divorce or just have some queries, please do not hesitate to get in touch and we can help you through your separation.
 

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