September 21, 2021

No-fault Divorce on the horizon – Big changes coming

Big changes are on the horizon in family law. The way that marriage breakdown is to be dealt with is to undergo fundamental reshaping as no-fault divorce will finally be on the statute books. It has been half a century since the last major change to the system so reform was arguably well overdue.

Presently in order to satisfy the court that grounds exist for a divorce, a petitioner has to rely on one of five facts: adultery, behaviour, 2 years’ separation with consent, 5 years’ separation or desertion.  Those who don’t want to wait 2 years or more for a divorce, must opt for adultery or behaviour, meaning they have no alternative but to start the process with blame – clearly not conducive to maintaining an amicable break-up.   Many people mistakenly believe that the party at “fault” will be penalised in the financial settlement.  In reality however, it is extremely rare for a party to be financially penalised as a result of their conduct during the marriage. 

Resolution, which is a community of law professionals committed to promoting a non-confrontational approach to family law, has been campaigning for over 30 years for a no-fault divorce process.  67% of Resolution members agreed the current law makes it harder for separated couples to reach an amicable arrangement for children.  90% of family law professionals agreed the current law makes it harder for them to reduce conflict and confrontation between clients and their ex-partners.  80% of Resolution members believed that no-fault divorce would make it more likely for separated couples to reach agreement out of court.

In 2018, the case of Owens v Owens came before the Supreme Court.  Mrs Owens had petitioned her husband for divorce based on his unreasonable behaviour.  Mr Owens defended the petition. After the case progressed through several tiers of court, the law came out on Mr Owens side meaning Mrs Owens is locked in a marriage which has clearly broken down while she waits until she can instead petition Mr Owens for divorce based on their 5 years’ separation. 

This case highlighted the need for Parliament to consider the long- standing campaign for a no-fault divorce.  Eventually, in June 2020 the Divorce, Dissolution and Separation Bill gained Royal assent and its slightly delayed implementation date is now 6 April 2022.     

Without doubt, the removal of fault and blame from the divorce process will enable separating couples to focus on arrangements for children and resolving the financial issues.   

When the new law comes into effect in April 2022, aside from the removal of fault or blame from the process, the possibility of contesting the divorce will be removed and the terms Decree Nisi and Decree Absolute will be replaced with Conditional Order and Final Order.   The new law will also apply to the dissolution of civil partnerships.

At Scott Bailey, our team of family lawyers are on hand to advise you in connection with any family law matters.  Contact Sarah Unsworth, Ann Herd or Olivia Dyer to arrange a fixed fee initial consultation.