Divorce, Dissolution and Separation Act 2020 receives Royal Assent on 25 June 2020 – “no fault divorce”
28 / 09 / 2021
Previously, I wrote about the fact that pursuant to the Matrimonial Causes Act 1973, “no fault” divorce could only be applied for after a period of at least 2 years’ separation – with the consent of the other person. Or 5 years if the other person did not consent.
This meant that couples have often (for the sake of speed!) relied on the “fault” based facts to achieve a divorce – with the most common facts for divorce relied on being either the other person’s alleged adultery or the other person’s alleged unreasonable behaviour, as these facts do not require a waiting period, save that the parties must have been married for at least 1 year prior to the divorce petition being lodged at Court.
However, on 25 June 2020, the Divorce, Dissolution and Separation Act 2020, amending the Matrimonial Causes Act 1973, received Royal Assent, and when it comes into force, it will introduce “no fault divorce” which many organisations, including Resolution, has campaigned for, for many years.
The coming into force of the Divorce, Dissolution and Separation Act 2020 was due to be in Autumn of this year but this has now been postponed until April 2022 (to allow for the introduction of the online digital divorce service and to ensure that it is up and running correctly).
When it does finally come into force, the changes will include (but are not limited to) the following:
Who can apply:
- The application to the Court for a divorce (which will replace “petitioning” for divorce) can be by one party to the marriage or jointly by both parties to the marriage;
On what grounds:
- The current five facts for a divorce (adultery, unreasonable behaviour, 2 years separation with consent of the other party, 5 years separation or desertion) will be replaced by a statement (either by one party or both depending on who is applying for the divorce) of “irretrievable breakdown”;
No defending the divorce:
- There will be no possibility for the divorce to be defended (as was the case in the now infamous case of Owens v Owens). The statement of irretrievable breakdown is sufficient evidence that the marriage has come to an end;
- As mentioned above, the divorce petition will then be termed, application for a divorce. However, that is not the only terminology changing. The Decree Nisi (which is the penultimate stage of the divorce but does not end the marriage but instead is a provisional decree pronounced when the Court is satisfied that the person applying for a divorce is entitled to it – with them having met the procedural and legal requirements) is to become a “conditional order”. The Decree Absolute – ending the marriage – is to become a “final order”;
- There will be minimum timeframes for the different stages;
- There will be a mandatory period of 20 weeks from the application for a divorce (currently the divorce petition) to the conditional order (currently the Decree Nisi), and thereafter, a minimum of 6 weeks from the conditional order (currently the Decree Nisi) to the final order (currently the Decree Absolute) ending the marriage; and
- The Court can reduce the timeframes upon application from one or both spouses if for an “exceptional” reason. One such example, would be terminal illness of one of the parties or the imminent birth of a child to one but not both of the parties to the marriage.
The future: what will this likely mean in practice?:
It is very much anticipated that the forthcoming changes to the divorce process will help to keep tensions reduced between divorcing spouses as there is no need to “blame” the other party to move forward with a divorce immediately (although it should be noted, as mentioned above, that the previous requirement for a divorce that the parties need to have been married for at least a year prior to the application will remain).
There will also be less need to argue about who should divorce whom, as it can be by both parties jointly.
Costs will also be reduced in cases where there will soon be no option to defend a divorce which can often be quite costly.
There is however increased wait times from the commencement of the divorce to the ending of the marriage; however, that should not pose a problem in many cases as it provides time for the financial aspects of the divorce to be resolved.