NO FAULT DIVORCE. ARE WE NEARLY THERE? BLM'S FAMILY LAW TEAM RESPONDS

NO FAULT DIVORCE. ARE WE NEARLY THERE? BLM RESPONDS

By Head of Family Law, London & South East at BLM, Partner Grainne Fahy and Solicitor Yasmin Khan-Gunns

The Divorce, Dissolution and Separation Bill 2019-21 has been presented to Parliament three times now, having been reintroduced, after some delay due to prorogation of Parliament in September 2019 and the General Election which followed in December 2019. It has passed through the House of Lords and passed its second reading in the House of Commons, with an overwhelming majority (231 for votes to 16 against). It was committed to the House of Commons for the remaining stages on 17 June 2020, with the final stage of Royal Assent now firmly in sight.

This all means that we are nearly there. No fault divorce is on its way to becoming law. It’s been a long slog to say the least, having first been introduced by the Family Law Act 1996, but the provisions then were deemed unworkable and it was later repealed.

What is the current law in England & Wales?

Under the Matrimonial Causes Act 1973, there is only one ground for divorce in England and Wales and that is the irretrievable breakdown of the marriage. In turn, the petitioner (the person seeking the divorce) must establish one of five ‘facts’:

  • adultery;
  • unreasonable behaviour;
  • desertion;
  • two years' separation with the consent of the respondent;
  • five years' separation (no consent required).

What are the issues with the current law?

The issues with the law as it currently stands, is that 3/5 of the ‘facts’ attribute blame to the respondent (the person on the other side of the divorce petition) – that the respondent has committed adultery: that the respondent behaved unreasonably; and the respondent deserted the petitioner.

This often creates an adversarial and accusatorial process which makes an already difficult divorce even harder. In addition, there may be situations where there has been no adultery, there has been no unreasonable behaviour and the petitioner has not been deserted. However, the parties do not want to wait two years or even five years before they divorce and so the petitioner has no choice but to invent or exaggerate examples of unreasonable behaviour just to get the divorce through. As you can imagine, this does not go down well with the respondent who has essentially done nothing wrong.

Why is reform necessary?

For the above and many other reasons, including the case of Owens v Owens in which pressure to reform divorce law grew, until it was finally placed on the government’s agenda. The basis of the reform was

to make divorce law consistent with the non-confrontational approach taken in wider family law and to recognise that a legal process that does not introduce or aggravate conflict will better support adults to take responsibility for their own futures and, most importantly, for their children’s futures’’.

This resulted in The Divorce, Dissolution and Separation Bill 2017-19 being introduced in the House of Common in June 2019. However, as a result of the prorogation of parliament last year, the Bill was re-introduced in the House of Lords in January 2020 as The Divorce, Dissolution and Separation Bill 2019-21 (Bill). It has thankfully now passed its Third Reading in the House of Commons.

What will change and what are the benefits of The Divorce, Dissolution and Separation Bill?

The Bill reforms the legal requirements and process for divorce. It aims to remove conflict and make the divorce process less acrimonious. Key measures will:

  • Retain the sole ground of irretrievable breakdown but crucially, there will be no ‘facts’, meaning there will be no need to blame your spouse or live separately for 2 or 5 years to obtain a divorce. Instead, there will be a new requirement to provide a statement of irretrievable breakdown. No further evidence will be needed.
  • Allow a spouse to assert that the marriage has broken down irretrievably without the other spouse challenging this and potentially blocking the divorce. Instead, the court will take the statement of irretrievable breakdown to be conclusive evidence that the marriage has broken down irretrievably.
  • Introduce a new option whereby spouses can make a joint application for a divorce.
  • Introduce a 6-month time-frame to the divorce process.

When will The Divorce, Dissolution and Separation Bill come into effect/apply?

All that remains now is for the Bill to receive Royal assent, which will be later this year. This is when the Queen formally agrees to make the Bill into an Act of Parliament (law). That said, it may take some time for the Bill to be implemented and thereafter, it may take some time for new forms and procedures to be drafted.

The Lord Chancellor Robert Buckland told MPs that the Bill’s reforms will not come into force on Royal assent ‘‘because time needs to be allowed for careful implementation’’. Robert Buckland also said ‘‘at this early stage, we are working towards an indicative timetable of implementation in autumn 2021.’’

How might the The Divorce, Dissolution and Separation Bill Bill impact couples currently in 'lock-down' who may be considering a divorce?

Whether you petition for a divorce now or whether you wait really depends on the individual circumstances of your case. However, given that we are some way off in the legislation coming into force; it would seem that those who have already made the difficult decision may prefer to start the process now, if they can agree to do so as amicably as possible. Waiting even longer can adversely affect both finances and children matters, though this may depend on your specific circumstances.

What happens if couples decide to divorce and then change their minds?

You can stop divorce proceedings any time up until the grant of the ‘decree absolute’ (legal agreement to end a marriage). Once your final divorce decree has been granted, there is no going back.

Will this new "quickie divorce" have a cooling off period?

The Bill does not provide for a "quickie divorce". Instead, there is a minimum 6-month time-frame before the divorce can be finalised. Furthermore, it is standard practice for various reasons not to finalise a divorce until after financial matters have been resolved, which can take many months or even years.

If the legislation is passed, could it be open to abuse?

There are some concerns about the financial impact, such as the issues surrounding pensions, and often ignored and sometimes very valuable asset in a marriage. If the final divorce is granted before a pension sharing order comes into effect, there is a chance that the order could fail. However, this is a real and present issue in any event and so legal advice is of course required.

Does The Divorce, Dissolution and Separation Bill go far enough? 

Arguably, the ability to halt the process to allow finances to be dealt with before a final decree would be helpful. There are many issues surrounding the rights of married couples, which fall away on divorce, and so if one party passes away in the process and the divorce has been finalised, this may leave them financially vulnerable. Though, either party can issue a financial application in order to preserve their position here if necessary.

All in all, it is the BLM Family Law team’s view that this reform could not come soon enough and will have an overall positive impact on the situation for divorcing couples.

 

Grainne Fahy, Partner and Head of Family Law, London and South East at BLM added: 

“This legislation is long overdue. Finally a human perspective has been brought to proceedings, to enable  married couples who no longer love each other to seek a ‘no fault’ divorce and circumvent the paternalistic view that they should ‘wait and see for a further two years whether they change their minds or not’ philosophy that some hold. However most of all, this signifies the end to the blame game, which will have a positive impact on this otherwise difficult process.

‘No fault’ divorce was originally tabled almost 25 years ago in the Family Law Act 1996, though was later repealed as it was deemed unworkable.

As a member of Resolution, I welcome legislation that eradicates the often acrimonious start to many a divorce proceeding, whereby parties must apportion blame. We, as lawyers, try to approach this as sensitively as possible to avoid unnecessary acrimony but this usually involves higher costs and even with that no one likes to be considered “unreasonable”. Civility will now reign, with this new legislation, and the benefits to couples, children, financial settlements and futures will be palpable."

 

Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

 

Who to contact

Grainne
Fahy

Partner , London

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Yasmin
Khan-Gunns

Solicitor , London

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