No-fault divorce: What divorce law reforms mean for the UK
10 Apr 2019
The decision to divorce, whether you have a short or long marriage, a marriage with kids, a marriage with no or extensive assets is never easy. However, the starting point to commence the process is the divorce petition.
When it comes to preparing the divorce petition, at the risk of generalising, I have come across the following types of clients:
- Those who wish to use the petition as a means of telling their spouse and the court the hardship they have endured.
- Those who wish to limit what is put in the petition to avoid confrontation or retaliation from the allegations documented, thus only wish to include what is necessary to get through the process
- Those who simply wish to get a divorce and are focused on the end process
- Those who see the divorce process as a race and wish to get their version of events detailed first
With the changes announced by the Lord Chancellor and Secretary of State for Justice namely David Gauke MP, the grounds for Divorce shall change therefore the thought process behind how you decide upon to petition shall also be changed.
The current position is that to prove that the marriage has irretrievably broken down your relationship must fit into one of the following facts:
- Your spouse has committed adultery and you find it intolerable to live with them
- Your spouse has behaved in such a way that you cannot reasonably be expected to live with the respondent
- That your spouse has deserted you for a least 2 years
- You have lived separately and apart for 2 years and your spouse consents to the divorce
- You have lived separately and apart for 5 years
With the changes, there will no longer be a need to fit into a fact. It is intended that the matter to grant a divorce will still be legal decision for the court to make thus the court will require the divorcing couple to satisfy the court that the marriage has irretrievably broken down and this can be done with a statement to that effect. This will be the only requirement.
There will be no need to provide conduct or separation-based facts. It is by removing the conduct-based fact, this change is coined ‘no fault’ divorce. In the words of RT Hon David Gauke ‘What the law should not do is entrench misery – either by forcing couples to remain legally bound against their will, or by compelling them to relive the most difficult parts of their relationship’.
Further changes proposed include
1) Allowing parties to jointly apply for a divorce as well as retaining the option for one party to initiate the divorce. This change shows a great shift in the courts attitude towards the breakdown of a marriage and enables parties to view divorce as a joint decision as opposed to confrontational.
In the event that one party to a joint application should change their mind, the petition can then still proceed on the basis of a one-party application.
No longer defend divorce
2) It will no longer be possible to defend a divorce. Previously it was possible to do so if there was as legal reason. However, it has been recognised that this process was abused therefore a divorce application can only be challenged on the bases of jurisdiction, validity of the marriage, fraud or coercion and procedural compliance.
3) A minimum timeframe will be introduced whereby between the petition to decree nisi there must be a minimum period of twenty weeks. This is in addition to the existing 6 weeks from Decree nisi to Decree Absolute. The sole purpose of this timeframe is to provide the parties enough time to reflect upon their decision. Divorce petitions can be issued very quickly therefore this timeframe provides parties with the assurance that they can reconsider the position.
It was considered whether the timeframe should start from when the receiving party gets the petition however this was viewed as too uncertain especially when a spouse may wish to thwart the process.
4) The terminology in divorce can be confusing and therefore the following words will be now updated
a) Petitioner – Applicant
b) Decree Nisi – Conditional order
c) Decree Absolute – Final order
The Governments response confirms that the following shall remain
1) You cannot apply for a divorce if you have been married for less than 1 year. This provision provides support to the institution of marriage and the commitment with it.
6-week period between Decree Nisi and Decree Absolute
2) It is only at the Decree Nisi that the divorce file goes before a judge and the judge determines whether the parties have effectively adhered to the process and met the legal requirements. The parties do not get divorced at this point but the application is given its approval in the form of a decree nisi certificate. After this process you must wait 6 weeks to finalise the divorce in the form of the Decree Absolute. The courts wish to retain this cooling off period to ensure that due consideration has been given before finally obtaining the Decree Absolute. This period also has extensive relevance in respect of any financial applications.
Rt Hon David Gauke provides ‘The law cannot prevent irretrievable breakdown” but it can prevent hostility and animosity which should hopefully pave the way for better discussions on matters relating to children and finance.
It is my view that the changes proposed provide a balance between letting individuals divorce that want to divorce but at same time giving enough time to reflect upon the commitment entered into in the form of marriage and to avoid deciding upon a divorce in haste.
If you want expert advice when it comes to separation or divorce, please contact me, Hardeep Dhillon, at Richard Nelson solicitors on 0333 888 4040. Alternatively, please email me at firstname.lastname@example.org