After decades of campaigning, predominantly by family law practitioners, The Divorce, Dissolution and Separation Bill finally received Royal assent and became an Act of Parliament on 25 June 2020. In the biggest shake-up of divorce laws for 50 years, the move towards “no fault divorce” is long overdue, and a welcome change which is aimed at reducing the impact that the requirement to apportion blame in divorce petitions can have on couples and their children.
The new law is not expected to come into force until the Autumn of 2021, so, whilst this is a huge leap in the right direction, those looking to divorce have a little longer to wait until they can use it. Below, we summarise the law as it currently stands, before considering The Divorce, Dissolution and Separation Act 2020 and what this might mean for divorcing couples.
For ease, further references to divorce and marriage throughout this blog will include references to dissolution and civil partnership, as appropriate.
WHAT ARE THE GROUNDS FOR DIVORCE UNDER THE CURRENT LAW?
Under the current law in England and Wales, there is only one ground for divorce: the irretrievable breakdown of the marriage. In order for the court to rule that the marriage has broken down irretrievably, the petitioner (the person who applies for the divorce) must establish one of the following five facts:
- The adultery of their partner (the respondent);
- That the respondent has behaved in such a way that the petitioner can no longer be reasonably expected to continue living with them (“unreasonable behaviour”);
- Desertion by the respondent;
- Two years’ separation with the consent of the respondent; or
- Five years’ separation (no consent required)
The ground and facts for the dissolution of a civil partnership are the same, save that the fact of adultery is not available.
This means that either one spouse must make allegations about the other’s conduct or otherwise face years of separation before a divorce or dissolution can be granted, regardless of whether both spouses have mutually agreed to separate. The most commonly used facts are adultery and unreasonable behaviour (both fault based) and according to The Office of National Statistics, in 2018 almost 60% of English and Welsh divorces were granted on that basis. The need to lay blame creates unnecessary conflict which impacts on both divorcing couples as well as any children involved.
At present, a divorcing couple cannot make a joint application for a divorce, even if they have both agreed to start divorce proceedings. One must divorce the other, and even if the matter is agreed, if the couple have not been separated for at least two continuous years, the petitioner must draft their petition based on adultery or the unreasonable behaviour of the respondent.
A divorce petition based on adultery or unreasonable behaviour can be defended if it not agreed. Whilst defended divorce petitions are very rare, the case of Owens v Owens SC  UKSC 41, highlighted the problems this posed. Mr Owens successfully defended Mrs Owen’s petition, in which she had relied on examples of his behaviour. As a result, she had no option but to wait until five years of separation before she could divorce her husband. The idea that an adult could not leave a marriage which had clearly ended shone a much needed spotlight on the need for reform (which had already been long campaigned for) and there is no doubt that Mrs Owens’ plight has had a hand in this historic change to the law; possibly a small consolation for the fact that she remained locked in a marriage she so publicly wished to exit.
Presently, assuming it is not successfully defended (as it was in the case of Owens), a divorce must go through two stages; the Decree Nisi and the Decree Absolute. The Decree Nisi is the first decree of divorce, which confirms that you are entitled to divorce. Decree Absolute is the second and final decree, which brings the marriage to an end. The petitioner must wait at least six weeks and one day from Decree Nisi before he or she can apply for Decree Absolute. If the respondent wishes to apply for Decree Absolute, he or she must wait a further six months.
HOW DO THE GROUNDS FOR DIVORCE CHANGE UNDER THE DIVORCE, DISSOLUTION & SEPARATION ACT 2020?
The current requirement to establish either a fault fact or a separation fact will be replaced with the option of one spouse or the couple jointly making a statement of irretrievable breakdown of the marriage. This change dispenses with the need for one party to “blame” the other and eliminates another source of conflict where parties can be accused of exaggerating or embellishing the other’s supposed unreasonable behaviour in order to get the application over the threshold so that the court may conclude it would be unreasonable to expect the parties to remain married.
The new law will also stop one spouse contesting a divorce if the other wants one, as a statement of irretrievable breakdown will be conclusive evidence that the marriage has irretrievably broken down and the court must then make a divorce order.
Importantly, for some separating couples, the new law allows parties to make a joint application for divorce if they choose to. Joint divorce petitions are possible in many other jurisdictions, but have never been permitted in England & Wales.
The new law also introduces a new minimum period of 20 weeks from the start of proceedings to confirmation to the court that a Conditional Divorce Order (previously known as Decree Nisi) may be made, allowing more opportunity for couples to agree practical arrangements. Whilst this is a significant extension to the current six week and one day period, the reality is that many divorces do not conclude in that time due to on-going discussions about the financial arrangements.
The language used is set to change also; Decree Nisi will be replaced with “Conditional Divorce Order” and Decree Absolute replaced with “Final Divorce Order”. Whilst this is not a substantive change to the law, it is a symbolic and important change nonetheless; the more user friendly terminology will hopefully help individuals better understand the two stages within a divorce process and it aims to create a distinction between family proceedings and other civil litigation, in conjunction with the removal of the ‘fault’ facts in encouraging amicable proceedings.
DOES THE DIVORCE, DISSOLUTION AND SEPARATION ACT 2020 MAKE DIVORCING EASIER?
The campaign for no fault divorce was widely supported by family practitioners across the country, and it received significant cross party support. The minority who objected to it raised concerns that the proposed new law would make divorcing easier, and that it would discourage reconciliation, seemingly weakening the constitution of marriage and civil partnerships. The reality is, however, that divorce and separation is rarely, if ever, easy. In the vast majority of cases, couples have gone through a long and often painful decision making process by the time they speak with a divorce lawyer. Divorce proceedings are rarely started on a whim, with some couples even trying counselling, therapy or a trial separation beforehand. The decision to end a marriage or civil partnership can be extraordinarily difficult and has often come after an extended period of deterioration in the marriage. The new law does not make it easier for couples to reach that decision, but it is hoped that it will minimise further hurt and upset after what has most likely been a very difficult and traumatic period in their lives.
Emotions can be high and offence easily caused at the start of the divorce process. The reality is that the reasons set out in a divorce petition rarely make a difference to the ancillary financial matters; the divorce petition, in that respect, acts as a means to an end, and there is little to be gained by setting out examples of the other’s poor behaviour. A divorce petition based on the fault of the respondent can risk the divorce process getting off on the wrong foot, setting a bumpy course for the parties for the duration of proceedings, including any ancillary financial and children matters.
Some people feel strongly about not being the one to complete the document that will start the process which will ultimately end the marriage, even where they have accepted that the marriage is over. “I do not want my children to think that I was the one to end the marriage.” “If he/she wants to end this marriage, they need to do it.” These are phrases many family lawyers have heard before.
Completing a divorce petition is a symbolic step for many and some individuals find themselves in the uncomfortable position of having to draft a fault based petition (under the current law) after deciding to end the marriage, against their former partner who is still upset at the decision that has been made and does not wish to petition. This only adds to the hurt or, as the saying goes, adds insult to injury. The fact that parties will no longer have to find fault will be of significant importance to many. Equally, the option of filing a joint divorce petition will be symbolic and significant for some; some couples make the decision to separate together, and the option to file a joint petition allows them to carry this cooperation through the divorce process. It can also be hugely significant for parents, explaining to their children that they have come to a decision together.
WHY NOT JUST SEPARATE AND WAIT TO AVOID THE BLAME GAME?
It is easy for some to say it is easy to wait; just wait for two years (if the other party consents) or five years (if they do not), and live separately in the meantime. Such was the fate of Mrs Owens, who had to remain legally married for a five year period after separating before she could divorce. For many, waiting is not an option and the process of moving on and rebuilding their lives may not truly start until they are no longer legally married. Further, and of significant importance, is the fact that a financial order cannot be made by the court (even with the consent of the parties) unless the divorce process has started and Decree Nisi has been granted. Whilst the parties can still try and reach an agreement on the financial arrangements, having this recorded in a court order offers more certainty and finality.
CAN ACRIMONY IN DIVORCE REALLY BE AVOIDED WITH THE INTRODUCTION OF NEW LAWS?
The change in the law is being heralded as the key to reducing conflict in divorce proceedings, but some may question whether the breakdown of a marriage is ever something that can happen without a certain degree of animosity. While the new law will not see an end to all high conflict divorces and separations, it will no doubt help in many.
Despite the current fault based system, family lawyers have, for many years, encouraged divorcing couples to try and resolve their issues in a constructive way in an effort to avoid unnecessary strain, stress and confrontation. Members of Resolution, an organisation that was founded in 1982 by family justice professionals who believed that a non-confrontational approach to family law would produce better outcomes, have been campaigning for no-fault divorce for over 30 years, and Resolution has been instrumental in bringing about the Divorce, Dissolution and Separation Act 2020. Resolution’s Code of Practice promotes a constructive approach to family law and counts among its commitments the aim to reduce or manage any conflict and confrontation. At the time of writing, over 6,500 family lawyers and other professional are members or Resolution, who have signed up to this Code of Practice, including all of the family law solicitors at Kingsley Napley. In 2018, Resolution ran a campaign for ‘Good Divorce Week’, and you can read Kingsley Napley’s tips for achieving a good divorce here. The change in the law will make it far easier for family practitioners to take the constructive and collaborative approach they already strive to achieve.
Another hope is that the removal of the need to rely on a ‘fault’ fact where two or five years separation is not feasible or realistic will make reaching mutual agreement much easier and increase the chances of successful alternative methods of resolution (for example mediation or arbitration). By avoiding the inevitable conflict created by the need to prove to the court that the other party is to blame for the breakdown of the marriage, the likelihood of resolving the situation outside of the court setting is increased and the collaborative approach encouraged by the Family Division is more realistically attainable.
I AM CONSIDERING A DIVORCE – SHOULD I WAIT TO DIVORCE UNDER THE NEW LAW?
Whilst the reform is approaching its final stages, there is still a relatively long wait before the new law actually comes into force, though it is hoped that ‘no fault divorces’ will start to take place in Autumn 2021. For many, this is a long time to wait and depending on the circumstances, waiting may not be the best option for you. Making the decision to divorce is a complex process, both emotionally, practically and legally, and we would recommend seeking the advice of a solicitor to assist you with weighing up any decision as to how and when to begin the process. The family solicitors at Kingsley Napley are members of Resolution and are therefore committed to approaching the divorce process with as little hostility as possible, even whilst a fault-based system is still in place. Details of how to contact our team of family lawyers can be found below.
The current divorce law in England and Wales is now 50 years old. In many respects, the world is now a completely different place, and this well overdue reform will bring an outdated and old-fashioned system more in line with the realities of modern life and relationships. We at Kingsley Napley believe the further reform in other areas of family law will help couples navigate the end of a relationship, and hope this will be the first of many.