The sixth of April 2022 welcomes the much-anticipated introduction of "no fault divorce", the biggest change in divorce laws for over 50 years.
This law will, for the first time, enable couples in England and Wales to submit an application for divorce without either having to wait for a minimum of two years or placing any blame on their spouse.
Campaigners hope the new law will lead to swifter and more amicable divorces across England and Wales. Whether the law will trigger a wave of divorces and encourage a higher long-term divorce rate (as is feared by some critics of the change) is currently unknown, although is doubted by the majority of those operating in the family law arena.
The current Law: not fit for modern day relationships
Family lawyers campaigned for years for the introduction of no-fault divorce and the modernisation of divorce law. They have argued that the current law is not fit for purpose. At present, the law in England and Wales has one ground for divorce: that the marriage has broken down irretrievably. The person petitioning for the divorce ("the petitioner") must prove this by citing one of the "five facts":
- Unreasonable behaviour
- Two years separation with consent
- Five years separation without consent.
Because adultery is defined, for the purposes of the law, as sex between a man and woman, that excludes those in same-sex marriages from being able to use the fact of adultery, a matter that makes divorce under the current law arguably less accessible to same-sex couples.
The most common fact used by petitioners is "unreasonable behaviour", a subjective term that is not clearly defined. The vagueness and subjectivity can cause issues for both the petitioner and their spouse (“the respondent”).
The petitioner typically lists around five examples of the unreasonable behaviour they claim they have suffered at the hand of the respondent to convince the court that the marriage has irretrievably broken down. No matter how delicately put or carefully drafted (and even where these details have been agreed with the respondent) a culture of blame is enacted from the offset. The proceedings can then have an "us versus them" mentality.
In the worst-case scenario, the unreasonable behaviour examples can cause irreversible hurt and a catastrophic breakdown in communication. In turn, that can lead to the process being longer and more litigious at a time when attention should be on settling matters amicably and focussing on the welfare of any children involved.
For financial applications on divorce to settle efficiently and without court involvement, co-operation and collaborative discussions are needed. These are also required to minimise the emotional impact of a divorce on any children.
Changes: blame culture removed
The new law removes the need to cite any "facts". Instead, petitioners can make an application for divorce by submitting a statement to the court setting out that the marriage or civil partnership has irretrievably broken down. Couples will also be able to make a joint application and begin their divorce journey together if they wish.
Currently, a respondent to a divorce petition could choose to defend the divorce. This can lead to expensive and very long court proceedings leaving petitioners chained to marriages until a court has ruled otherwise. Unless there is fraud, lack of jurisdiction or procedural irregularities, this will no longer be an option for a respondent to a divorce petition.
In a modernisation of divorce terminology the "decree nisi" (the first stage of the divorce), will be replaced with "conditional order". "Decree Absolute" (the decree that determines the end of a marriage) will be replaced with "final order".
A longer, more reflective process
Under the old legislation, if both parties agreed, a divorce could be finalised in three to four months. With the incoming law, this is set to be extended to a minimum of six months.
The new law builds in an explicit "cooling off period" of 20 weeks from the date of the application until the conditional order can be applied for. This is to provide an opportunity for reflection and a chance to reach agreements. It remains to be seen how many applications for divorces will fall away during this period and whether proportionally, more no-fault applications will be withdrawn.
Will the new law cause a surge?
Alongside the many positive changes, an application for divorce will take less time to prepare and will be a simpler process. There are concerns that the court could, as a result, receive unprecedented numbers of applications.
This, however, seems unlikely. It can rarely be said that someone takes the decision to divorce lightly. Divorcing a spouse is an incredibly difficult decision that tends to be painstakingly thought out and comes with a heavy emotional toll.
For couples who have been considering divorce for a while, or have been waiting to be separated for two years in order to divorce without blame, the introduction of the new law in April 2022 may lead to them proceeding sooner.
While the impact on divorce rate will only be seen in time, the new legislation should greatly reduce the acrimony in divorces, assisting couples to make decisions for their future collaboratively.