No fault divorce

For nearly 50 years, a couple wanting a divorce have had to rely on some form of fault to enable the divorce to be granted.

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For nearly 50 years, a couple wanting a divorce have had to rely on some form of fault to enable the divorce to be granted. At the moment, there is only one ground for divorce and that is that the marriage has 'irretrievably broken down'. The party who starts the proceedings must prove that the marriage has broken down by establishing one of the five facts:

  • adultery
  • unreasonable behaviour
  • two years of separation with consent
  • desertion
  • five years of separation (with no consent being required).

The situation came to a head in 2018 when the Supreme Court heard a sad case involving a couple who had been married since 1978. The wife brought the proceedings for divorce but her argument that her husband's behaviour had been unreasonable was not accepted by the court.  One of the judges said that denying the appeal 'generates uneasy feelings' but 'uneasy feelings are of no consequence in this court'. The court concluded that the wife would have to remain married to her husband for the time being and further should rely on five years of separation with no consent as the appropriate fact to support a divorce petition at the appropriate time. Importantly, the Supreme Court concluded by observing that Parliament 'may wish to consider whether it was now necessary to replace a law' which denied the wife entitlement to a divorce in circumstances which clearly left her desperately unhappy but were not sufficient to enable her to bring her marriage to an end.

The Divorce, Dissolution and Separation Act 2020 is due to come into force on 6 April 2022. The principle underlying the Act is that it will remove the 'blame game' which is widely acknowledged to have a significant negative impact on a couple and their children. Under the Act, one spouse (or the couple jointly) will be able to make a statement of irretrievable breakdown. The five facts mentioned above will be removed so it will not be necessary to provide evidence of conduct or separation to prove irretrievable breakdown. The Act will also introduce a 20-week period between the initial petition stage and when the court grants the provisional decree of divorce (called the 'decree nisi'). The government's intention is that the 20 weeks will provide a 'meaningful period of reflection and the chance to turn back, or where divorce is inevitable, it will better enable couples to cooperate and make arrangements for the future'.

This will be known as no fault divorce and it will be possible to make the application for divorce online.

The implementation date for the Act has been put back a couple of times so it is fair to say that 6 April 2022 is not written in stone. Accordingly, anyone considering divorce proceedings in the next few months may wish to take specialist advice to ensure that they are fully aware of the new procedure. Considerable stress could be avoided if a divorcing couple wait until the implementation of the Act before starting proceedings.

To discuss this or any other family matter, contact us.

Members: Simon Shaw, Elizabeth Rimell and Janice Leyland.
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