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What is a "no-fault" divorce?

Insights / 16-06-2020

The Bill which proposes to introduce “no-fault” divorces in England and Wales was backed by MPs last week and it is possible that it will receive Royal assent within the next week. This is a very significant development in family law and one that has been eagerly awaited by family practitioners.

Under the current law to initiate Divorce proceedings immediately, the grounds must be adultery, unreasonable behaviour or desertion. Otherwise, parties are obliged to wait for two years to divorce their spouse with consent or five years without it.

Catalyst for reform

The catalyst for this reform was the Judgement of the high profile case of Owens v Owens [2018] UKSC 41 where a wife’s petition to divorce her husband was contested leading to her only being able to obtain a divorce by living apart for him for five years.

The new law will mean that couples can start divorce proceedings immediately and will only need to state that the marriage has broken down irretrievably. Couples will be able to apply jointly for a divorce where the decision is mutual and it will no longer be possible to contest divorce proceedings which has always proven to be a very costly exercise and one that has inevitably caused great delay.

These changes aim to reduce conflict and animosity between the parties at an early stage in the proceedings and promote a conciliatory approach, which will hopefully benefit not only the couple divorcing but also any children involved. They will be able to commence the proceedings with dignity and with less acrimony at an early stage. It is hoped that it will make the separation less traumatic and the legal process less painful.

Protection for victims

A further aim of the changes is to protect victims of domestic abuse from being trapped in their marriage through a contested divorce and prevent their abuser from exercising further coercive control over them.

Under these proposals, there must be a minimum six-month period between the lodging of a petition and the divorce being made final.

Interestingly this regime has already been implemented in Gibraltar since August 2019 where it has generally been seen as having a very positive impact. The Gibraltar Parliament did, however, forget to apply the same changes to the Civil Partnership Act so, at the moment, civil partners do have to wait a separation period of 2 years with consent or 3 years without consent.  This is looking to be changed.

It is already encouraged for solicitors to keep the divorce process as non-confrontational and as cordial possible in order to reduce costs and to act in their client’s best interests. It is anticipated that the changes to the law will assist this and make divorce a more ‘harmonious’ process.

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Authors:
Yael Selig, Consultant
Eleanor Bing, Trainee Solicitor

Yael Selig

Yael Selig Consultant

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