No Fault Divorce: Divorce, Dissolution and Separation Act 2020
6 August 2021 by Lucie Wilkinson
On 7 June 2021, ministers announced that the Divorce, Dissolution and Separation Act 2020 will come into force on 6 April 2022 after receiving Royal Assent in June 2020. The introduction of this legislation will allow married couples and civil partners to divorce without assigning blame, taking away the so called ‘blame game’.
The implementation of the Divorce, Dissolution and Separation Act is warmly welcomed by most family law practitioners after decades of campaigning.
Current law in the England and Wales
Presently, a divorcing couple cannot make a joint application for a divorce, one must divorce the other on one of the following 5 grounds for divorce:
- Unreasonable behaviour
- Living apart for more than 2 years if both spouses consent to the divorce; or
- Living apart for more than 5 years
Same Sex and Opposite Marriages can be ended by divorce on the above 5 grounds. Same Sex and Opposite Sex Civil Partnerships can be ended by a dissolution order on the same grounds as with divorce, excluding adultery. The definition of adultery is “…sexual intercourse with someone of the opposite sex outside of marriage”.
Grounds for divorce which require one party to apportion blame to another can give rise to unnecessary conflict.
What is the process for no-fault divorce?
It will still be the case that spouses cannot get divorced unless they have been married for 12 months.
- Application for a “divorce order”
One spouse, or both spouses jointly, will be able to apply to the court for a “divorce order” asking the Court to dissolve the marriage on the ground that the marriage has irretrievably broken down.
The applicant or applicants must accompany their application with a statement that the marriage has broken down irretrievably. The statement of irretrievable breakdown will be conclusive evidence. This will replace the need for parties to provide evidence regarding adultery, unreasonable behaviour or proof of separation.
- Application for a “conditional order”
20 weeks from the start of proceedings the applicant or applicants will need to give confirmation to the court that they wish for the application to continue.
The court will then make a “conditional order”.
- Application for a “final order”
6 weeks after the pronouncement of the conditional order, the applicant or applicants may apply for a final order. There will be some limited circumstances where it will be possible to reduce the 6 weeks period.
The same process will apply for the dissolution of civil partnerships.
How will the Divorce, Dissolution and Separation Act 2020 reform divorce?
Divorce and separation in itself can be disruptive, emotional, expensive and difficult for both parties without the added burden of having to blame one party for the breakdown of the marriage. The ‘blame game’ in divorce can have knock on effects on disagreements between couples as to matrimonial finances and/or arrangement for children.
According to the government, this is the biggest reform of divorce law in 50 years and the hope is that, by removing the need for “fault”, it will significantly reduce conflict between couples on divorce and when dealing with other issues relating to children and finances.
Furthermore, the Divorce, Dissolution and Separation Act 2020 will virtually remove the possibility of a decision to divorce being contested as the statement of irretrievable breakdown will be determinative. There are a limited number of exceptions where a divorce can be contested, these being on the basis of jurisdiction, the legal validity of the marriage, fraud, coercion and/or procedural compliance. It is expected that this change will prevent the small number of cases each year where divorces are defended by respondents who are objecting to a divorce, often as a matter of principle, even where it is clear that the marriage has broken down irretrievably.
The delay in the implementation date, which was expected to be October 2021, is to allow the online digital divorce service to ensure that their system is fit for purpose for a seamless transition to the no fault divorce system.
Should I wait to divorce until April 2022?
Deciding to divorce is rarely a straight forward decision. There are often emotional, practical and legally implications of divorce. Sometimes timing is an important consideration, and delay can often give rise to unforeseen consequences. Here at Fisher Jones Greenwood, we would recommend seeking legal advice from one of our solicitors to assist you in making this decision.