Divorce law reform has been pushed back to 6 April 2022 due to problems getting the new system needed up and running.
No-fault divorce will make getting a divorce simpler and less stressful for couples across the country. It will remove the requirement for couples to give reasons for the divorce (such as adultery or unreasonable behaviour), allowing them to end their marriage more peaceably. Experts say no-fault divorce will end the ‘blame game’ of the current divorce system.
However, people looking forward to no-fault divorce will have to wait a little longer. Although the change in the law was supposed to be implemented in autumn 2021, it was announced in June that the introduction of no-fault divorce has been delayed to 6 April 2022 (at the earliest).
But if you want to get a divorce in 2021 or the first part of 2022, does the delay matter? For most couples, the delay may be annoying but will not prevent them from getting a divorce or civil partnership dissolution. This is because most divorce and dissolutions are mutual and so will be approved by a judge regardless of the reasons provided.
Here we take a look at why divorce law is changing, why no-fault divorce is being delayed and whether the delays could affect your divorce.
Why is divorce law changing and what is no-fault divorce?
Divorce law has gone mostly unchanged since the 1970s and many experts think the current law is out of date.
Under the current law, you can only get a divorce or civil partnership dissolution if one person makes an application stating that the relationship has irretrievably broken down. To prove the irretrievable breakdown of the relationship, there are five acceptable reasons:
- Adultery (this reason is not available for civil partnership dissolution).
- Unreasonable behaviour (where your partner has behaved so poorly that you cannot reasonably be expected to live with them anymore).
- Separation for two years where both partners consent to the divorce or dissolution.
- Separation for five years, with no consent needed from your partner.
- Desertion for at least two years.
Adultery and unreasonable behaviour are the fastest ways to get divorced but require the applicant to place all the blame for the separation on their partner. In many relationships, this does not reflect the truth. Relationships end for all sorts of reasons, for example, you may slowly fall out of love with your partner, or you may decide you want different things in life.
It is also possible for one partner to object to the divorce, for example, to say that they do not agree with your reasons and that you should not be allowed to get a divorce. This is what happened in the famous case of Owens v Owens. In 2018, Tini Owens lost her Supreme Court appeal for a divorce from her husband of 40 years because she could not convince the judges of her reasons, despite the judges saying the case was ‘very troubling’.
In these cases, the unwilling partner is essentially trapped in the marriage until five years have passed and they can rely on the ‘separation without consent’ fact.
No-fault divorce introduced in the Divorce, Dissolution and Separation Act 2020
After the Owens case, the government finally agreed to change the law and introduced no-fault divorce. The Divorce, Dissolution and Separation Act was passed in 2020 and the government said it would implement no-fault divorce from autumn 2021.
Under the new law, the five ‘facts’ will be abolished. All a couple will need to do to get a divorce or dissolution is provide a statement that the relationship has irretrievably broken down.
The new law will also introduce some other changes, including:
- Couples will be able to make a joint divorce application, so there is no ‘blame’.
- Couples will no longer be able to object to the divorce, other than in very limited situations (such as fraud).
- Divorce language is being made clearer. For example, ‘divorce petition’ will become ‘divorce application and ‘decree nisi/absolute’ will become ‘conditional/final order’.
- The period of time couples must wait between the grant of a conditional order and application for a final order is being extended to 20 weeks to give the couple more time for reflection.
Why is no-fault divorce being delayed?
No-fault divorce is being delayed to allow necessary changes to be made to the divorce systems in place. For example, court rules need to be amended, new guidance for divorcing couples needs to be produced, and a new online digital divorce service is being developed.
Will the no-fault divorce delays affect your divorce?
The delays will understandably be disappointing for many couples. But it does not mean that you cannot get divorced. At the moment, divorcing couples have to go through the existing divorce process.
This means relying on the five ‘facts’ to prove the irretrievable breakdown of your relationship. If you and your partner both want the divorce, this will not be an issue. So long as you fill in the court forms correctly, the court is likely to accept your divorce petition and not investigate your reasons too thoroughly.
Disputes about the reasons for divorce
Problems might arise if your partner does not want to get a divorce. If your partner objects to your petition, you may be required to go to court to prove your reasons. This can be very stressful, time-consuming and expensive. So, if you think your partner will object, it may be worth waiting for no-fault divorce, but your solicitor will provide all the advice you need to make a decision.
Disputes about children and finances
If you think disputes over money or your children may arise, you probably do not need to wait for no-fault divorce. Children and financial matters are always sorted out separately to the main divorce process, so will not be affected by no-fault divorce.
Another reason you may want to wait for no-fault divorce is if you feel very strongly about placing any blame. Joint applications will allow couples to both submit an application for divorce, removing the need for one person to be the ‘respondent’ which is often perceived to be the person ‘at fault’. Joint applications will not be available until 6 April 2022.
Do you need advice about no-fault divorce?
At Henriques Griffiths, our friendly family law and divorce solicitors can provide advice and support to people who want to get a divorce or civil partnership dissolution. We handle all aspects of divorce, including the application process, advice about the division of money and property, and making arrangements for children.