No fault divorce

15th July 2022 Family Law

*This blog was orginally published in The Law Society’s Private Client Section magazine, May 2022.*

On 6 April 2022, the Divorce, Dissolution and Separation Act 2020 came into force, heralding a new era for the law on divorce and civil partnership dissolution.

Under the previous law, there was only one ground for divorce, the irretrievable breakdown of the marriage. This was evidenced by one of 5 ‘facts’, namely:

  1. Adultery (divorce only)
  2. The other party’s behaviour, sometimes known as ‘unreasonable behaviour’
  3. Desertion
  4. Two years’ separation with consent; and
  5. Five years’ separation.

Of the five, the most common ‘fact’ was unreasonable behaviour as, often, the other facts were simply inapplicable. This – like adultery and rarely-cited desertion – forced the parties to allocate blame for the breakdown of the relationship, or wait two or even five years, creating unnecessary hostility from the beginning of the process.

The campaign for no fault divorce reached fever pitch in July 2018 following the Supreme Court’s judgement in Owens v Owens [2018] UKSC 41 (25 July 2018).

In that particular case, it was clear that Mr and Mrs Owens’ marriage had broken down and Mrs Owens petitioned for divorce on the basis of Mr Owens’ behaviour. Mrs Owens’ particulars of Mr Owens’ behaviour were anodyne in accordance with standard practice, and, as a result, Mr Owens was able successfully to defend the petition. The parties therefore remained married until Mrs Owens could petition on the basis of five years’ separation, a ruling the justices made with reluctance.

Lady Hale described the case as “very troubling” and the reaction was swift, with the Ministry of Justice looking to reform the system through legislation, the limitations of the law having been laid bare. 

The new law

So what has changed? Well, the only ground for divorce, dissolution or judicial separation remains irretrievable breakdown.

However, the five / four facts have now been replaced by a statement in an online or paper form that the marriage or civil partnership has broken down irretrievably, which will be conclusive evidence of the breakdown. Applications can only be disputed on jurisdictional grounds or because the subsistence or validity of the marriage or civil partnership is in doubt.

The final divorce or dissolution order will still cause the former spouse or civil partner to be treated as having predeceased a testator or intestate on the date of the order (Wills Act 1837, ss18A-18B).

All petitions issued before 6 April 2022 will continue under the old law.

Terminology

Outdated terminology has been removed to make the process more accessible.

The petition and petitioner are referred to as the application and the applicant.

The terms decree nisi and decree absolute are replaced with the terms conditional divorce order and final divorce order respectively, terminology already used in civil partnership dissolution.

Moreover, the terminology around disputes is also changing. A defended petition will now be referred to as a disputed application, and an undefended petition will be known as an undisputed application.

Changes in Procedure

With the advent of the new law, there is an introduction of a 20-week minimum period between issue and conditional order, in addition to the 6-week period between conditional order and final order, which mirrors the existing 6-week minimum between decree nisi and decree absolute.

There are, however, circumstances in which someone may wish to expedite this process, for instance, an impending bankruptcy or terminal illness. In exceptional or urgent circumstances like these, the process can be shortened by a court order under s1(8) of the Matrimonial Causes Act 1973.

There is an option of a sole or joint application, a new approach which aims to avoid potential animosity.

Innovation

The MyHMCTS portal for family law practitioners will continue to be expanded under the new law, as part of a wider trend toward digitisation.

The portal, which became mandatory for new divorce applications by solicitors in September 2021, will now include dissolution applications. This has been welcomed by legal professionals, as the number of civil partnerships for 2020 (the latest year we have records for) are their highest since 2007. This is because of the advent of opposite-sex civil partnerships which were legalised on 31 December 2019. The number for same-sex couples, meanwhile, has reached a record low.

Service of court documents will generally be effected via the court electronically. Orders will be issued via email as a PDF.

Applications for judicial separation and nullity will continue ‘on paper’.

Conclusion

The new law will have the same end-result as the previous law – people will divorce. 

However, as a solicitor specialising in family law, this new law to me represents a step in the right direction, towards a more resolution-focused conclusion to a relationship.

Divorce will always be painful. Extrication from your legal and emotional connection to another is unlikely ever not to be. Nevertheless, the new law avoids throwing kerosene on the kindling.

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Joe Ferguson is a Solicitor located in Manchesterin our Family department

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