A landmark change in Family law will see the introduction of ‘no-fault’ divorce from autumn 2021 at the earliest, in England and Wales.
The Divorce, Dissolution and Separation Act will allow couples to jointly agree that the marriage has broken down. This means they will be able to issue no-fault divorce proceedings, removing the requirement for one spouse to assign blame, in order to obtain a divorce.
This poses a welcome change in helping to support couples who separate and conclude their divorce process. It will reduce unnecessary tension or hostility, particularly for the individuals and any children involved, and resolve matters as amicably and constructively as possible.
The group representing family law legal practitioners, Resolution, has campaigned for over 30 years for a change in the law in this area.
The current law governing divorce provides that a divorce can only be considered on one of five facts, the first two being based on blame (the other party’s adultery or unreasonable behaviour) or separation of at least two years.
If couples did not wish to wait for at least two years, blame-based petitions would be encouraged. This would often result in early tensions and arguments, spilling over into related aspects concerning children and finances. It is hoped that this significant change in the law towards no-fault divorce will help to avoid such situations. However, couples will not be able to progress a petition until at least six months after the petition itself is filed with the court.
The finer detail of the no-fault divorce legislation and its implementation is yet to be fully clarified. Questions remain regarding such potential issues as whether costs orders will be made (if the petitioning party wishes to have some or all of the divorce costs paid by the receiving party). Costs orders are common in blame-based petitions but far rarer in petitions based upon separation.
It is also not yet entirely clear whether there will be any grounds for defending a petition if one party has a religious or moral objection to divorce, or if this will potentially leave them in a vulnerable financial position.