The Government has re-introduced the Divorce, Dissolution and Separation Bill to Parliament which is set to bring about the biggest shake up of divorce laws in half a century by introducing a system of no-fault divorce.
This begs the questions to many about whether to wait to divorce or not? Is it worth waiting for the new law to come into effect?
As the new proposals will remove the necessity of attributing blame for the breakdown of a marriage it is hoped that this will reduce animosity and acrimony between the parties and Justice Secretary MP Robert Buckland has commented that it will ‘spare’ families. In turn, it is hoped that arrangements for finances and children matters can be resolved amicably.
Nevertheless, despite these hopes it may not be worth the wait. Firstly, the bill may not pass and if it does it is certainly unclear when that will be or when the provisions will be implemented.
Current Divorce Law
The current divorce system in England and Wales requires one party, ‘the Petitioner’, to initiate the process of filing for divorce on the basis that the marriage has ‘irretrievably broken down’. To establish this ‘irretrievable breakdown’ they are required to rely on one of five facts:
- Unreasonable behaviour
- Two years separation if the other party consents to the divorce; or
- Five years separation without the consent of the other party.
There is currently no option for a couple to apply for divorce together even if they have jointly decided that their marriage has ended. Instead, the Petitioner is required to either wait two years – and have the consent of the other party – or assert blame on the other party, ‘the Respondent’. For those wishing to have an immediate divorce, the current system is fundamentally ‘fault-based’ and requires the Petitioner to evidence either behaviour or adultery of the Respondent and this encourages increased animosity between separating couples by having to decide who is at fault and what allegations to make.
New proposals for no-fault divorce
The new proposals will allow for a system which, instead of having to attribute blame for the breakdown of the marriage, the parties can mutually cite ‘irretrievable breakdown’ as the sole ground for the basis of their divorce. The changes that the Bill provides for are as follows:
- Parties only need to produce a statement of irretrievable breakdown – no blame will be apportioned.
- This can be done either by an individual or by way of a joint statement in which the parties mutually agree to a divorce.
- The option of contesting the divorce will be removed. This is expected to protect victims of domestic abuse however it should be noted that divorce applications could still be challenged on jurisdictional or procedural grounds or on the basis of fraud, coercion of legal validity of the marriage.
- There will be a period of reflection for the parties – The new legislation seeks to introduce a minimum period of 20 weeks between the initial petition stage of the proceedings and when the court grants the conditional decree (decree nisi). This is to provide the parties with time to process the divorce and withdraw the proceedings should they subsequently decide to reconcile.
Parallel changes will be made to laws governing the dissolution of civil partnerships, which broadly mirrors the process of obtaining a divorce.
The new legislation has been largely anticipated to fit with modern day society and changing attitudes towards marriage. It is hoped that it will afford parties the opportunity to navigate through divorce proceedings in an amicable and non-confrontational manner.
When and if the proposals will be implemented is unknown and there is a lengthy process that the Bill must go through before it will become law. If you are already going through a divorce when the new proposals come into effect then the process under the existing rules will continue and only those who start the process after the Bill becomes law will benefit.
However, until no-fault divorce is implemented, for anyone already considering divorce then an acrimonious split is not the only option. By approaching the process in the right frame of mind and engaging with an experienced family law specialist then it is possible for couples to go through the process with as little animosity as possible to enable them to move on with their lives.