Family Law expert, Amanda Wilson looks at the current divorce law, the new divorce legislation and its potential impact.
On 25th June 2020 the Divorce, Dissolution and Separation Act 2020 received Royal Assent following agreement by both Houses of Parliament. This Act brings about the biggest shake up to divorce law in England & Wales in almost half a century and introduces entirely “no fault” divorce.
The current law
Under the current law there is one ground for divorce which is irretrievable breakdown of marriage. However, in order to prove that a marriage has irretrievably broken down it is necessary either to claim that the other party is at fault (either on the basis of adultery, unreasonable behaviour or desertion) or to wait for at least two years if the other party will consent and 5 years if they will not.
Many couples do not wish to wait for 2 or 5 years to be able to divorce and to move on with their lives and their only option is to divorce by attributing fault to one party. Quite often the assertion of fault is considered to be a charade and simply a means to divorce without having to wait. The courts in nearly all cases accept at face value the assertions of wrongdoing made by the petitioning party. They have no practical means to investigate whether such assertions are true. The apportioning of blame, especially where none in reality exists, can exacerbate animosity between divorcing couples which in turn can adversely affect their children. It also makes it more difficult for parties to reach an agreement regarding the division of the matrimonial assets.
The new legislation
The new law allows one party, or indeed both parties together where there is mutual agreement, to make a statement of irretrievable breakdown. No evidence will be required in support. There will then be a minimum period of 20 weeks between the start of the proceedings and the pronouncement of the Decree Nisi (to be renamed Conditional Order). The current 6 week period between the making of the Conditional Order and the making of the Final Order (formerly Decree Absolute) will remain. It is hoped that the 20 week period will allow couples to reflect on the implications of their decision to divorce or, where divorce is inevitable, to plan and agree the arrangements for the future.
The impact of the new legislation
Critics argue that the government’s proposal will undermine the institution of marriage, and, by making it easier to divorce, the number of divorces will increase which will impact negatively on children. The government’s position is that they will continue to support marriage but that couples should be able to move on constructively when divorce is inevitable and that this would benefit children.
Most family practitioners have long campaigned for this change in the law as they see at first hand the damage that can be done by the current system of apportioning blame shortly after separation where emotions are already running high. It is clear from the current law that it is not possible to force couples to remain together. Married couples divorce in large numbers under the current system. Indeed, ONS statistics show that over 100,000 couples divorced in 2018. By allowing divorce without fault it is hoped that at least some of the animosity between couples can be alleviated and this can only be positive for their children.
The Resolution Campaign for ‘No Fault Divorce’
The new legislation brings to a successful conclusion a 30-year campaign by Resolution, the national family justice body, to end the requirement for couples to assign fault in order to be granted a divorce. Resolution is an organisation of family law professionals committed to helping their clients reach a fair solution quickly and cost effectively. All of Girlings expert family lawyers are Resolution members and they work to the Resolution Code of Practice.
Resolution’s National Chair, Margaret Heathcote, commented on the successful conclusion of the campaign for 'No Fault Divorce':
“Our members have been campaigning for change for years, in Westminster and in towns and cities across the country where they work. They’re all committed to reducing conflict between separating couples, but our outdated divorce laws have meant they’ve been working with one hand tied behind their back.
“This new law will mean they’re better able to support couples to resolve matters as constructively and amicably as possible, minimising the impact on any children they may have.”
Nigel Shepherd, former Chair of Resolution and long-time campaigner for no-fault divorce, added:
“This is the biggest reform of divorce laws in England and Wales in over fifty years, demonstrating just how outdated and old-fashioned fault-based divorce is. This victory would not have been possible without the dedication and enthusiasm of our members, who wrote to and met with their local MPs in support of our campaign.
“We worked closely with the Ministry of Justice on this Bill and look forward to continuing to work with them to implement the new law as soon as possible so that we can start helping separating families more effectively.”
Expert legal guidance
Girlings Family Law team is delighted that no blame divorce will finally be a legal reality. It is not anticipated that the new Act will come into force until late 2021 or early 2022. However, change is coming and the change is to be welcomed.