The latest on 'No-Fault' Divorce

Following on from our article regarding the Supreme Court case of Owens v Owens (see here for background) the justice secretary has pledged this week that legislation for no-fault divorce will be introduced once parliamentary time becomes available.

The new legislation seeks to end what is often viewed as the ‘blame game’ in marital breakdowns. Under existing legislation, the petitioner (i.e. the individual who starts divorce proceedings) is required to demonstrate that their spouse is at ‘fault’ for the irretrievable breakdown of the marriage either through their adultery or unreasonable behaviour, if they wish to file a divorce petition without delay. As it stands, parties can only file for divorce without having to apportion blame on one another after a continuous two (with consent of the other party) or 5 year separation period (without consent of the other party) has elapsed.

The existing legal framework is therefore viewed by many as outdated and unconstructive - as it can often fuel conflicts between parties when it comes to agreeing arrangements regarding children and finances. It is hoped that the legislative changes will help to ease animosity between parties and allow a movement towards a more collaborative approach.

Under the new legislation it is intended that the necessity for a party to file and serve allegations of either adultery or unreasonable behaviour will be replaced. Instead the petitioner will be required to serve a ‘statement of irretrievable breakdown’ with the Court when filing their divorce petition. It is also planned that couples will be able to make a joint application for divorce as part of the legislative shake-up.

Whilst there are sweeping changes in the pipeline, it is intended that the two-stage process for divorce (Decree Nisi and Decree Absolute) will remain, but with a revised minimum timescale of six months. The six month period will commence from the date that the divorce petition is filed with the Court, with the parties then having to wait at least six months before the Court is able to pronounce the Decree Absolute - thereby formally terminating the marriage. It is hoped that this change in statutory timescales will allow couples greater time to ‘reflect’ on their decision to separate, before electing to formally end their marriage.

A further change that is to be implemented is that respondents will no longer be able to contest a divorce. In 2018 118,000 people petitioned for a divorce in England and Wales, with less than 2% of these cases being contested. Whilst this change will therefore effect only a small minority of applicants, it should prevent cases such as Owens v Owens arising in the future.

It is also intended that parallel changes will be made to the present legislation governing the dissolution of a civil partnership – although further parliamentary comment is required before these changes can be contextualised.

If you require any further advice in relation to separation or divorce then please contact the Family Team on 01603 610911.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.