Hailed by practitioners, academics and those who have been through divorce proceedings alike, one of the most hotly anticipated changes to Family Law in 2021 will be the introduction of No-Fault Divorce.
What is No-Fault Divorce?
Well under the current law (which has been in place and largely unchanged since 1973), the parties are required to prove that there has been an “irretrievable breakdown” of the marriage. Contrary to popular public myths, this is the sole ground for divorce under UK law.
The contentious part of that is that the ground for divorce must be proven with reference to the “five facts”, three being based on “fault” and two being based on periods of separation. In practice this means that unless a couple wants to wait for 2 years to petition on the basis of separation (with the consent of their ex-spouse), or a whopping 5 years without their consent, the divorce will need to proceed on a “blamed basis”. This means that they will essentially need to blame the other party for the breakdown of the marriage, which as you can probably imagine, entails a degree of unnecessary acrimony.
The most common fact of divorce that couples rely on is what is colloquially known as “unreasonable behaviour”, whereby the petitioner will allege that the respondent has acted in such a way that they cannot reasonably be expected to live with the respondent. Most lawyers will tell you that drafting a petition on this fact can be a bit like traversing a tightrope; you need to allege enough to satisfy the Court that the marriage has broken down, but you do not want to go so far that you risk inflaming your ex-spouse and losing any hope of conducting matters amicably.
The law was ripe for reform, and the cause was given fresh zeal following the case of Tini Owens. For those not in the know, Owens was a woman (then 68) who lost her high-profile appeal to the Supreme Court to be granted a divorce in July 2018. She had petitioned on the fact of unreasonable behaviour, but her husband had refused to cooperate or consent to the divorce proceedings. The Court held that she had not met the threshold for unreasonable behaviour, meaning that she would have to stay in an unhappy marriage until either 2020 (when she would be eligible for divorce on the basis of 5 years’ separation) or until the law was reformed.
The media furore that ensued from this case, coupled with the Supreme Court’s criticism of the current legislation, put pressure on Parliament to effect change. And on 25 June 2020, the Divorce, Dissolution and Separation Bill received Royal Asset and became an Act of Parliament, signalling the biggest shake-up of divorce laws in over 50 years and reflecting more modern attitudes to relationship and marriage breakdowns.
What will change under the new law?
The new law is expected to come into force in Autumn 2021. The current requirement to establish either a fault or separation fact will be abolished, and instead couples will have the option to make a statement (either jointly or by one spouse) of the irretrievable breakdown marriage. The Court will no longer be required to conduct a forensic examination of the reasons for the breakdown of the marriage but will take couples at their word.
Some other key changes will be that for the first time in UK law, parties can make a joint application for divorce if they wish to. The new law will also remove the ability for one spouse to contest a divorce if the other one wants to divorce, as the statement of breakdown will be conclusive evidence that the marriage has broken down.
The nomenclature used is also set to change; whilst the 2 stage system of divorce will remain substantively unchanged (except for a change to the timetable), the Decree Nisi will be replaced with a “Conditional Divorce Order” and Decree Absolute will be replaced with “Final Divorce Order”. The symbolic importance of this being that the law is moving towards a more accessible, readily understandable and user-friendly system.