No fault divorce is here and it could change the face of family law. It means that, instead of having to ‘blame’ one half of a separating couple for separation – a practice which often brings with it a substantial amount of acrimonious baggage – the couple can cite ‘irretrievable breakdown’ as the sole grounds for seeking divorce.
Reform years in the making
I still remember (fondly) my lectures in Family Law back at Liverpool Uni 1992/3. One of the things we were lectured on was no fault divorce. Apparently it was coming. Sounded good I thought.
Throughout my 20 plus years of being a solicitor there have been various other heralds that no fault divorce is definitely going to happen. This time. This reform. This Act. But it never seemed to get over the line.
Resolutionlead a great charge on this. Our own Danielle Day was even part of a delegation which championed the cause at the Houses of Parliament back in April 2019 to lend her support to this campaign. Surely this time…? No.
Last summer, we thought this law happening in early 2020 was the best we could hope for. And then it went off the Government’s radar. Again. Perhaps understandably with Brexit and everything else this government has been occupied with. So, I really, really couldn’t see it happening. So much so that I spoke at a briefing meeting a few weeks ago about all these times we had been ‘almost there’ and said, with an air of assurance, “Don’t hold your breath – I can’t see it happening in my legal career”.
But apparently a pandemic is exactly what it takes to bring 30 years of family-law campaigning to an end! A mere few weeks after that conversation above, the Divorce, Dissolution and Separation Act 2020 has been given Royal Assent! So that means it is now law; there is no going back, no maybe next time, no when there is more parliamentary time etc. The no-fault provisions won’t come into effect until a date to be announced next year. As we understand it, this is what this LONG awaited piece of legislation will likely mean in practice, updating the Matrimonial Causes Act 1973
- The no applications for divorce within one year from the date of the marriage will remain.
- The old conduct/fact grounds of adultery and (so called) ‘unreasonable behaviour’ will go. Instead there will be a statement that ‘the marriage has broken down irretrievably’ and, for the first time, this can be made jointly by each of the people in that couple.
- There will still be an initial order “conditional order” (what is currently Decree Nisi) and a final order not less than six weeks after this (currently Decree Absolute).
- Timeframes will operate; a minimum of 20 weeks from the start of proceedings to the conditional order of divorce and a maximum of six months (total) from the initial application to the granting of a divorce. This is much better than the current timeframes – although it remains to be seen how courts that are already stated to have 20+ week backlogs will cope with this.
- Couples are encouraged to use this 20 week minimum time to reflect; to see whether reconciliation is a possibility or, if not, to use the time to agree arrangements that flow from the decision to divorce, e.g. arrangements for the children or finances. This fits well with forms of dispute resolution such as mediation and collaborative law, but impossible with contested proceedings through the court about finances and/or children, which can take over a year to conclude.
- It will no longer be possible to contest a divorce; with the removal of fault and blame the statement of irretrievable breakdown will be conclusive. Even if only made by one party, the court must proceed to make a divorce order.
- The same sort of framework will be put in place for the less-used Judicial Separation route and for Civil Partnerships entered into under the Civil Partnership Act 2004.
- The provisions can’t be used for divorce proceedings started before the commencement date of the new Act. (for which we await the Lord Chancellor to appoint by further regulations). (Before the end of my legal career please!)
It really does feel like family law has come of age. There is little detail available to us all as yet but we will keep updating you as we know more. I hope that all the old terminology of petitioner and respondent etc. will disappear along with the blame connotations attached to it.
Does it really matter?
Has it been worth the wait? You bet. I was mediating recently and the most contentious point was who would divorce who and what the allegations of unreasonable behaviour would be. This feels like couples being able to take a much more dignified approach to formally bringing to and end something very precious, without going through the hurdles created by laws older than most of them. And without the mudslinging. I thought it was well summed up in the Government’s press release on the gov.uk website:
“The new laws seek to align the divorce law process with the government’s approach elsewhere in family law - encouraging a forward-looking non-confrontational approach wherever possible, thereby reducing conflict and its damaging effect on children in particular.”
Sarah Smith is an Eminent Practitioner in Family Law and has been supporting separating couples for over 20 years.