Is the ‘blame game’ finally being removed from divorce?

October 12th, 2020 / Posted in Uncategorised

The Divorce, Dissolution and Separation Bill has now reached the end of its parliamentary journey and is set to be implemented in English law in Autumn 2021. This legislation will allow couples to apply for a divorce without placing blame on the other party, drawing an end to the often complicated and stressful ‘blame game’. This process will be known as ‘no-fault divorce’.

What are the current grounds for a divorce?

Currently, one party of the marriage may petition for a divorce under the ground that there has been an ‘irretrievable breakdown of the relationship’, this means the marriage cannot be salvaged. The petitioner must evidence the irretrievable breakdown of the relationship through one or more of the following facts, these facts effectively ‘blame’ the responding party for the irretrievable breakdown of the relationship.

• Adultery
  • To rely on this fact the petitioner must prove their spouse has had sexual intercourse with another person and they therefore find it intolerable to live with their spouse. If the relationship has not featured sexual intercourse it may be difficult to rely upon the fact of adultery and the petitioner may be advised to consider utilising the fact of unreasonable behaviour.
• Unreasonable behaviour
  • This is the most commonly relied upon fact, to rely upon this fact the petitioner must show their spouse has behaved in such a way that they cannot reasonably be expected to live with them. The petitioner may choose to evidence around six allegations of unreasonable behaviour which collectively evidence that they cannot reasonably be expected to live with their spouse.
• Desertion
  • This occurs when the petitioner’s spouse has deserted them for a continuous period of at least two years. In order to satisfy the test for desertion the petitioner must show that they have no information relating to the whereabouts of their spouse and they have made reasonable attempts to locate them. This fact is rarely relied upon.
• Separation for two years with consent of the respondent
  • If a couple have been separated for a period of two years and both parties agree to the divorce, one party may petition for a divorce under this fact.
• Separation for five years (consent of the respondent is not needed under this fact)
  • If a couple have been separated for a period of five years either party may petition for a divorce under this fact without the consent of their spouse.

The responding party has the opportunity to contest the divorce petition if they do not agree with the fact the petition is based upon. If the responding party successfully contests the petition the petitioner must wait five years before petitioning for divorce without consent.

The law surrounding divorce has been criticised for many years for being outdated and causing conflict between separating couples. There are concerns the current law forces couples to remain married but separated for a period of five years where the one party does not consent to the divorce. The requirement to remain married but separated for five years creates risk for those in marriages which feature domestic violence, or where one party is not financially independent and therefore cannot separate.

In 2018 Mrs Owens lost her Supreme Court appeal to divorce her husband on the grounds that she was unhappy. Mr Owens disputed Mrs Owens’s allegations of unreasonable behaviour, the court agreed that in this case the fact of unreasonable behaviour could not be evidenced. The couple had not been living separate for five years, therefore, Mrs Owens was unable to rely on one of the facts required to evidence an irretrievable breakdown of the relationship and could not apply for a divorce. Following this case the government responded to pressure to reform divorce law.

What changes will the no-fault divorce make?

1. The new legislation will remove the requirement to evidence one or more facts to prove the irretrievable breakdown of the relationship. This will remove the need to ‘blame’ a party for the irretrievable breakdown of the relationship in cases where a couple have not lived separate for five years.
2. Removal of the ‘blame’ element of a divorce eliminates the possibility that a responding party will contest the facts of the divorce, saving time, costs and stress for all involved.
3. If a couple is in agreement that the relationship has irretrievably broken down they will be able make a joint application, allowing for an amicable separation.
4. The new legislation will update divorce language:
   1. ‘Decree Nisi’ will become ‘Conditional Order’
   1. ‘Decree Absolute’ will become a ‘Final Order’
   1. ‘Petitioner’ will become the ‘Applicant’
5. The new minimum period of time between the start of proceedings to the Conditional Order will be 20 weeks. This minimum period is intended to allow parties time to consider financial and child care matters.

Should you wait for no-fault divorce to start?

There are a number of reasons why you may or may not decide to wait for no-fault divorce to be implemented in English law before proceeding with your divorce. We recommend seeking expert legal advice before making the decision to wait for a no-fault divorce. For advice about no-fault divorce or any other divorce matter, get in touch with our Family solicitors by calling 01530 510666 or emailing enquiries@mandersol.co.uk. 

References:

Owens v Owens [2017] EWCA Civ 192

Divorce Dissolution and Separation Act 2020