News | April 6, 2020

No fault divorce: Second reading at the House of Lords on 5 February 2020

The Law in England and Wales for a divorce only allows “no fault” to be attributed to either party after a minimum period of two years since separation (the two years separation with consent ground). Other grounds include 5 years separation – no consent required – or desertion. Otherwise, in order to proceed immediately (provided that the parties have been married for at least a year) the Petitioner (the personal applying for a divorce) must rely on one of the “fault” based grounds of either adultery or unreasonable behaviour.

The “Divorce, Dissolution and Separation Bill” was previously presented to Parliament with the proposal to remove the grounds (including the “fault” based grounds for a divorce) and instead replacing it with a provision which confirms that either or both parties to a marriage may apply to the court a “divorce order” which dissolves the marriage on the ground that the marriage has broken down irretrievably. Such an application must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably. It further confirms that “The court dealing with an application …must— (a) take the statement to be conclusive evidence that the marriage has broken down irretrievably, and (b) make a divorce order”.

The above means that if the Bill is made into Law at a later date (ex)couples would be able to apply for a divorce, a divorce will not be able to be defended and it removes the “fault” based grounds.

In terms of timescales, the Divorce, Dissolution and Separation Bill was debated at a first reading and a second reading at the House of Commons on 13 June 2019 and 25 June 2019 respectively. It was then referred to a Public Bill Committee, who would sit on 2 July 2019 to go through the report line by line with them reporting their findings subsequently.

The latter was anticipated to take place on 4 July 2019; however, matters have been on hold for some time and that did not happen and the Bill was not approved before the end of the Parliamentary session.

The Bill was then reintroduced – this time to the House of Lords – and the first reading taking place on 15 October 2019, which was welcome news to many Family Lawyers who support the concept of no-fault divorce. The second reading as at that time was yet to be scheduled.

The Divorce, Dissolution and Separation Bill [HL] 2019-2020 is now back on the agenda again, with the First reading taking place at the House of Lords on 7 January 2020.
On 5 February 2020 there will be the Second reading and a general debate on all aspects of the Bill.

This is seen as welcomed news by many – including by Resolution who have spent a long time complaining for the introduction of “no fault” divorce.

Resolution cite various examples of what is wrong with the current law in this respect, such as:
• In the experience of Resolution’s members, the current divorce law doesn’t encourage co-operation. Rather, it introduces and/or escalates conflict from the outset of the divorce process, making it harder for people to make agreements about children and/or finance issues.
• All too often the first discussion is about who is to issue a divorce petition, on which fact, and the detail of the behaviour alleged. This can lead to polarised opinions and extensive correspondence, which sets a negative tone for the more important discussions to follow around children and money.
• It can derail discussions even for those who otherwise have chosen to try to reduce conflict, including those choosing out of court processes such as mediation, collaborative practice or constructive negotiation. Our mediator members frequently see a mediation process derailing, or coming close to doing so, because of the discussions that have to take place about who blames who on the petition.
• Most divorces have at least one party representing themselves in proceedings rather than a trained legal professional. How can we expect them to know how to draft a behaviour petition or as a respondent, to know they don’t have to defend the behaviour? This adds unnecessary confusion into the process”.

We will now await the outcome of the debate on 5 February 2020!