Big changes for separating couples – No fault divorce is coming

Insights - 07/09/2021

The Divorce, Dissolution and Separation Act 2020 (“DDSA 2020”) brings about the biggest reform of divorce law in 50 years and is the result of long term lobbying by members of the legal profession for changes to the current system.

Currently, couples seeking a divorce in England and Wales must have been separated for a period of 2 years or one must blame the other for the marriage breakdown, citing either adultery or unreasonable behaviour. Even if both partners mutually agree that the relationship is over, if they do not wish to wait for two years before commencing the proceedings then it is necessary for the divorce proceedings to proceed with a petition which apportions blame.

For the majority of couples, the preparation of the divorce petition will be their first introduction to the legal process and for many years, family lawyers have raised concerns that a system which encourages an adversarial approach at the outset of proceedings can significantly undermine efforts to work towards amicable agreement in relation to financial matters and co-parenting arrangements in relation to any minor children.

The aim of the DDSA 2020 is to reduce conflict within the legal process of divorce and it is hoped that this in turn will empower partners to work together to find constructive solutions for the issues relating to finances and children arising from separation.

Current Regime

Under the current regime, one partner must petition for divorce and must rely on one of the following statutory facts within their petition:

  1. Adultery
  2. Behaviour
  3. Desertion
  4. Two years separation with consent
  5. Five years separation without consent

Figures obtained by Resolution (formerly Solicitors Family Law Association) suggest that in 2015, 60% of divorces in England and Wales were granted on the basis of adultery or unreasonable behaviour whereas in Scotland where the divorce law is different and there is scope to proceed on a no fault basis after a shorter period of time, only 6% of petitions were on the grounds of adultery or unreasonable behaviour. Given that so many petitions rely on allegations of unreasonable behaviour, it is perhaps no surprise that the current system allows the Respondent spouse an opportunity to defend the divorce.

Under the current regime, divorce can therefore be a costly, stressful and time-consuming process and the aim of the new system is to offer a much more streamlined approach.

Key Changes

Under the new regime, no explanation or evidence of the reasons for the breakdown of the marriage is necessary and it will no longer be possible to raise allegations of bad behaviour.

The Court will not be required to look into the reasons for the irretrievable breakdown of the marriage and all that will be required is for one or both partners to provide a statement confirming that the marriage has irretrievably broken down.

The new system will remove the possibility of one partner contesting the divorce and the scope for proceedings to be challenged will be extremely limited thus, avoiding costly defended proceedings.

Under the new system, couples will be able to lodge a joint application for divorce where the decision to separate is mutual and there is a wish for cooperation.

It is hoped that this early instance of couples working together will lead to more couples electing for Alternative Dispute Resolution in relation to the issues that arise from separation rather than entering into Court proceedings. The intention is to encourage joint applications where possible however in the event that a joint application is made and one partner then seeks to resile from the process, the application can be converted into a sole application and will proceed accordingly. The reluctant joint applicant cannot therefore block an application from progressing.

It is estimated that the process should take approximately 26 weeks from the filing of the initial petition. However this may be subject to delays while the financial matters are resolved as the court must be satisfied that appropriate financial provision has been made prior to the final divorce order.

Coupled with the recent guidance from the Judiciary that applications to court on financial matters and matters relating to children should be the last resort, this really is a wholesale shift in the culture of family law with the focus going forward being firmly on collaboration and co-operation.

When is No Fault Divorce being implemented?

The DDSA received royal assent in June 2020 and implementation is planned for 6 April 2022. Our family law team frequently help clients embrace a collaborative approach to separating through exploring ADR options, backed by our longstanding expertise in litigation.

Our family law team frequently help clients embrace a collaborative approach to separating through exploring ADR options, backed by our longstanding expertise in litigation.

If you would like to discuss any of the issues addressed in this article then please do contact a member of our family team who would be happy to help.

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.