No-Fault Divorce – A Better Way Forward?
Lindsay Davies, an Associate in our Family team, considers the effect of the new divorce reform to come into force in April 2022.
The upcoming reform on divorce has been long awaited and was decided over a year ago by the Divorce, Dissolution and Separation Act 2020. It will apply to both divorce of marriage and dissolution of a civil partnership.
Currently, to start the divorce process, an individual must prove that their marriage has irretrievably broken down. In order to do this, one of 5 facts has to be relied upon. But if you want to divorce without having to wait at least 2 years from separation, you must blame the other person, by relying on adultery or unreasonable behaviour.
From 6 April 2022, the element of fault will be removed, and there will be no need to cite specific reasons or behaviour in the application. Instead, it will be necessary to provide a statement of irretrievable breakdown. There will also be the option for a joint application, which aims to reduce the unnecessary animosity between the parties and will be useful in cases where the parties just grow apart. Additionally, the new legislation will remove the possibility of contesting the divorce.
When the reform comes into force in April, the language of divorce will be simplified, with decree nisi becoming a conditional order and decree absolute becoming the final order. There will also be a minimum of 20 weeks between the start of proceedings and a conditional order.
The reform has been long awaited, and particularly publicised with the case of Owens v Owens ( UKSC 41), where the courts refused to grant a divorce based on evidence of the breakdown and unreasonable behaviour, despite a clear irretrievable breakdown of the marriage. The legislation was hoped to come into force this Autumn, but there have been delays in updating the court forms and online systems while finalising the smaller details of the rules.
It is hoped that the reform on divorce will reduce unnecessary conflict and promote a practical approach to separation. For example, the parties can focus on the children and finances, as opposed to blaming each other for the divorce itself.
For parties considering a divorce now, it is useful to note that there will be a no-fault option in April. For those wishing to avoid blame and perhaps a simpler route to divorce, the no-fault option may be best. However, there is still some wait before then. You may want to think about whether you would like to get on with things and start a clean break prior to the new year.
Furthermore, the divorce process can affect related financial proceedings. A financial remedy order can only be sealed by the court after the decree nisi (or conditional order) has been pronounced. Those therefore wishing to obtain a sealed (and thus enforceable) order soon may want to act, to implement the terms of any financial arrangements agreed. This will also have an impact for those wishing to transfer assets prior to the next financial year as part of a financial arrangement.
If you would like any further information or advice relating to divorce or family matters, our Family team would be delighted to assist.