The biggest change in divorce law for 50 years is due to be introduced on 6 April.
No fault divorce will replace the current fault-based system. At the moment, the sole ground for divorce is that the marriage must have irretrievably broken down. A petitioner must cite one or more of five “Facts” in support of a divorce petition to show that the marriage has irretrievably broken down; adultery, behaviour, desertion, two years’ separation with the respondent’s consent or five years’ separation without the respondent’s consent.
Under the new no-fault system, the sole ground for divorce will remain that the marriage must have irretrievably broken down. However, it will no longer be necessary to cite one of the “Facts”. A divorce application containing the assertion that the marriage has irretrievably broken down will suffice.
It is already very rare for divorce proceedings to be defended. Realistically, the chances of successfully defending a divorce are already virtually nil. The only successful defended divorce in recent years, Owens v Owens, was regarded as so astonishing that it gave vital impetus to the campaign for divorce reform.
Under the new no-fault system, it will become impossible to defend a divorce. The only possible way to oppose (“dispute”) a no-fault divorce would be where the respondent claims that the court has no jurisdiction (where, for example, neither party is domiciled or habitually resident in England and Wales), where there are divorce proceedings already underway in another jurisdiction, where the parties are not actually married or where the parties are already divorced. It will no longer be possible for a respondent to argue that the marriage should not be dissolved because it has not irretrievably broken down.
Inevitably, there will be some who argue that this undermines marriage and that it will cause the divorce rate to rise. However, no fault divorce is not unusual in many other countries and academic research undertaken by Professor Liz Trinder of the University of Exeter with the Nuffield Foundation shows that in countries where no fault divorce has been introduced, there has been no increase in the divorce rate, save for a brief spike in divorces caused by people who have been waiting for the new law to be introduced before starting a divorce. (Over the past few months, I have noticed that I have commenced relatively few divorce proceedings on behalf of my clients; this is no doubt a dip in divorces that will generate the spike).
The new process is not radically different to the old divorce process. In fact, it will take a little longer than the current system, as there is a minimum six-month cooling off period between the divorce application being issued and the application to the court for the conditional divorce order. However, as it is generally considered to be good practice to resolve financial issues and obtain a financial consent order from the court prior to applying for the decree absolute (which will become known as a final divorce order under the new system), the length of most divorce proceedings is unlikely to change as resolving financial issues usually takes far longer than the actual divorce proceedings themselves.
Much of the terminology will be updated and modernised. The party commencing the divorce proceedings will no longer be known as a “petitioner” and will instead be known as an “applicant”. The petition for divorce will become known as an application for a divorce order. The decree nisi and decree absolute will in future respectively be called a conditional divorce order and a final divorce order.
So why has the law changed? For many years, family practitioners have argued that the current fault-based system does nothing to save marriages and instead merely acts as an additional cause of hostility and discord between the parties in the divorce.
Many non-lawyers mistakenly believe that a petitioner who alleges adultery, behaviour, or desertion by the respondent will gain some kind of advantage in relation to the financial aspect of a divorce. However, in reality, if a court has to decide financial issues, i hardly ever takes into account the parties’ conduct. Conduct is only taken into account by the court in divorce financial proceedings where it would be inequitable to be disregard it. It is very rarely relevant. Even in cases where it is relevant, what is in the divorce petition will make not the slightest bit of difference. Judges are aware that a divorce petition is an entirely one-sided document and that divorces are rarely defended.
For example, in a behaviour divorce petition, it is common practice for a respondent to deny the behaviour allegations, but to agree that he or she will not defend the divorce petition; that is not treated by the court as being an admission that any of the allegations are true, even if there is technically speaking, a document called certificate of entitlement which produced by the court which states that the petitioner is entitled to a divorce on the basis of the respondent’s behaviour.
Similarly, while adultery may give rise to the ability to divorce, it does not necessarily mean that the adultery is what caused the marriage to irretrievably break down. For example, at the moment, it is perfectly possible to obtain a divorce by citing adultery where that adultery did not take place until longer after the parties had separated and had both concluded that their marriage had irretrievably broken down.
The reality is that the current system is a nonsense and that the introduction of no-fault divorce is a long overdue improvement. Those opposed to no-fault divorce (who tend to be politically on the right and/or very religious) are wrong when they claim that no-fault divorce will make divorce easier. It is already very easy to divorce; all the petitioner has to do is point a finger and make unpleasant allegations about the respondent, something which far too many people find all too easy when a marriage breaks down. No-fault divorce will not make divorce easier; it will simply remove the potential for pointless additional conflict. It will not cause marriages to break down.
While no fault divorce will not remove all hostility and bitterness from divorce proceedings, it should reduce it. It will help parties to concentrate on the important issues in their divorce; agreeing arrangements for their children and resolving the financial aspect of the divorce. Furthermore, for the first time, it will be possible for parties to jointly apply to the court for a divorce order rather than one spouse divorcing the other.
The new system will also remove some of the illogicality of the current system. The new no-fault system will also include no-fault dissolutions of civil partnerships, not just divorces. It will therefore remove the current illogicality whereby a divorce can be ended by citing adultery, whereas a civil partnership cannot.
These changes have been a very long time coming. No fault divorce should have been introduced during the 1990’s. The then Conservative government’s plan to introduce no-fault divorce in the Family Law Act 1996 was delayed indefinitely by the incoming Labour government in 1997 and then quietly abolished without ever being brought into force. The issue then received little public attention, despite the campaigning by groups such as resolution until the controversial decision by the Family Court in the case of Owens v Owens in 2016. The widespread consternation among both the legal profession and the public at Mrs Owens’ inability to obtain a divorce gave much-needed impetus to the no-fault divorce campaign and the government announced that it would again introduce no-fault divorce legislation. The Divorce, Dissolution and Separation Act was passed in 2020 and it was hoped that the new law would be brought into force in September 2021, but this has been pushed back until April 2022.
The need for the court to complete checks on all new divorce proceedings before they can be issued means that it will not be possible (save in an emergency) to issue divorce proceedings after 31 March 2022 until the new law is introduced on 6 March 2022. We are now so close to the arrival of the new law, it would probably not be sensible to issue divorce proceedings now unless it was absolutely necessary (for example, in a case where it is important that divorce proceedings are issued now in England and Wales before the other spouse commences divorce proceedings in another jurisdiction which may result in a less advantageous financial outcome for the client).
The new system will not change the court’s powers in relation to financial disputes in a divorce or the dissolution of a civil partnership. It will still be vitally important to seek legal advice from a specialist family solicitor in relation to financial issues and to obtain a financial order from the court, even where there is an agreement between the parties.
6 March 2022
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