Ending the blame game: new legislation introducing ‘no-fault divorce’

Justice Secretary David Gauke confirmed today that new legislation is to be introduced which would allow parties to obtain a ‘no-fault divorce’.

The Ministry of Justice said the new legislation is expected to be introduced ‘as soon as parliamentary time allows’. This is a long awaited overhaul to the existing legislation, which can be seen as exacerbating tensions between married couples who wish to be divorced. Other countries such as Germany, Sweden, Canada and the United States already have legislation which permits ‘no-fault divorce’.

Existing legislation

Currently in England and Wales, a divorce can only be obtained on the ground that the marriage has broken down irretrievably. In order to establish the irretrievable breakdown of the marriage the spouse applying for the divorce (the petitioner) must prove one of the following five facts:

  • The respondent has committed adultery and the petitioner finds it intolerable to live with them.
  • The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
  • The respondent has deserted the petitioner for a continuous period of at least 2 years.
  • The parties have been separated for a continuous period of at least 2 years and the respondent consents to a divorce.
  • The parties have been separated for a continuous period of at least 5 years.

The first two facts listed above seek to lay the blame for the irretrievable breakdown of the marriage on the respondent’s behaviour or their adultery (it is worth noting that in the case of same-sex marriage, adultery is not a fact upon which the petitioner can rely). Accordingly, for a petition to proceed without fault, the petitioner must wait for at least two years with the consent of the respondent and, in cases where the respondent is unwilling to consent to separation after two years, at least five years from the date of separation, before they can obtain a no-fault divorce.

Owens v Owens

The highly publicised case of Owens v Owens led to campaigns for reforms to the existing laws, as it highlighted the difficulties that come with proving one of the facts above and of the forced continuation of marriage that can occur if one party does not consent to divorce.

In Owens v Owens, Mrs Owens was unable to divorce Mr Owens, who defended her divorce petition, as she was unable to prove that Mr Owens’ behaviour was unreasonable behaviour in the context of their marriage. This left Mrs Owens unable to pursue a divorce until 2020, when the 5 year period of separation will have been fulfilled. So troubling was the outcome in that case that Lord Wilson, in his leading judgment, suggested that ‘Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances.’

New legislation: ‘no-fault divorce’

Parliament appears to have heeded the comments made by Lord Wilson in Owens v Owens.

The new legislation removes the need to satisfy the courts of one the five facts set out above. A party would, therefore, be able to file a petition for divorce on the grounds of the irretrievable breakdown of the marriage alone without the need to assign blame.

The benefit of moving to a no-fault system is that it removes the stress and animosity that can arise at the very outset of a divorce, as the petitioner would no longer need to rely on the respondent’s behaviour or adultery as the cause of the irretrievable breakdown of the marriage in order to obtain a divorce without waiting at least two years from the date of separation. In practice, the requirement to prove unreasonable behaviour means that the petitioner must prepare a list of the respondent’s conduct that will often arrive on their doorstep without warning and can lead to hurt feelings. This is not a good way to start the divorce process which is already a stressful time for all involved and particularly where there are children involved who will be affected by even the slightest build-up of tension between their parents.

Timescales for divorce

Whilst many will welcome today’s announcement, there are those who see it as a threat to the institution of marriage and are concerned that it will lead to a more relaxed attitude to marriage. In part to address this issue, Parliament has announced that the new legislation will introduce a 6 month period between the filing of a petition and before decree absolute is granted, which will allow the parties to reflect on the decision to divorce, attend mediation and ultimately change their minds before the divorce is finalised.

Under the current system, there are shorter timescales. For example, a respondent must file an acknowledgement of service within 7 days of receiving the divorce petition and following pronouncement of decree nisi, there is a minimum period of 6 weeks and one day until the petitioner can apply for decree absolute. However, in practice it often takes around 6-8 months for a divorce to be finalised.

It is not entirely clear how this 6 month period will operate in relation to financial orders. At the moment, an order dealing with finances cannot be approved by court until decree nisi, and even if approved, it is only enforceable on decree absolute. In cases where there are more modest resources available, the 6 month period may lead to parties having to spend all of this time in the same house as one another if they cannot afford to move out. The interplay with the 6 month period and overall implementation of financial orders is not clear but hopefully will become more evident when further details on this legislation are revealed.

The future for divorce petitions

At present, and as seen from Owens v Owens, the respondent to a divorce petition can defend the application which can in turn lead to the petitioner being forced to wait for 5 years from the date of separation before being able to apply again for divorce. The new legislation will remove the right to defend a divorce petition in this manner, and will therefore prevent this type of delay from occurring in future.

A further provision which the new legislation is said to include is the ability for the parties to apply to the court for a divorce on a joint basis, in much the same way that parties can apply for financial orders by consent.

It is uncertain when this new legislation will come into force, particularly given the current political landscape in which the changes have been announced, but the impact it will have on parties seeking a divorce is significant. Resolution, the national family justice body, has welcomed the proposals after campaigning for ‘no-fault divorce’.

If you are seeking further information or advice about any of the above, please contact Caroline Penfold, Partner and Head of the Family Team.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

Briefing tags , , ,