What is No-Fault Divorce?
There is a buzz going around that no-fault divorce is coming to town. But what is it and why is it important?
For years the divorce laws in the UK have given rise to number of complications for those wishing to divorce. And with introduction of no fault divorce, things are set to look brighter.
Divorce is a complicated matter. In essence, it is an untangling of two or more lives that have been woven together for years. It is a messy and difficult process under best of circumstances. However, one element in the UK divorce laws made this even more complicated: requirement that there was a guilty party for the termination of marriage. Otherwise, the spouses would have to wait for 2 years after separation, if both agreed to have a divorce, or 5 years if one of the parties refused to agree to it for whatever reason.
The hardship and heartache that hid behind these archaic laws came to full view after the now ill-famed case of Owens v Owens, where the wife relied on unreasonable behaviour of her husband, asking for a divorce. The husband contested these allegations and the court accepted his position, thereby denying the divorce. On subsequent appeals to Court of Appeal and later to the Supreme Court, the decision was maintained and Mrs Owens had no other choice but to remain locked in an unwanted marriage for another 5 years.
Finally, after many years of campaigning, the UK has adopted new legislation that paves way for No Fault Divorce. Divorce, Dissolution and Separation Act 2020 was adopted this year and is expected to come into force in Autumn 2021. Does this mean it will be easier to get a divorce in the UK from next year? Yes and no. The answer depends on where the complications with the divorce lay. It will be easier to terminate the marriage, however all the accompanying issues, related to finances and childcare will still remain. However, it has to be said that the adoption of no fault divorce has the potential of making the divorce process less acrimonious, thereby assisting with the aspects of financial settlement and child arrangements. We will expend on this a bit further in the next part of this blog.
Current State of Divorce Law in the UK
We have mentioned above that currently, to get a divorce in the UK there has to be a guilty party or a lengthy separation. There are only five grounds for divorce and until such time when the No Fault Divorce Bill (Divorce, Dissolution and Separation Act 2020) comes into force, these are the only ones you can rely on when you are looking at terminating your marriage. The five grounds are:
- Unreasonable behaviour;
- Separation of 2 years;
- Separation of 5 years.
The distinction between the last two is that in the case of 2 year separation both parties must agree for the marriage to be terminated, while for the 5 years separation such agreement is not necessary and either party may apply to terminate it.
Adultery is usually difficult to prove and desertion is rare. Therefore, the most commonly used ground for a divorce s ‘Unreasonable Behaviour’. There is no clear set of behaviour that can be seen as unreasonable, for each person it can be a different pattern. However, whatever the claimed reason is, it should convince the judges that the behaviour is such that the petitioner (ie the person asking for the divorce) cannot be reasonably expected to remain in marriage. If the party who is ‘accused’ of unreasonable behaviour does not contest the petition, then the divorce is likely to go ahead. Issues arise when these allegations are contested. This can put an effective halt to divorce proceeding, as seen in Owens v Owens.
Apart from the potential of ending up in a contested divorce, the current state of affairs means that one of the spouses is being made responsible for failure of marriage. This often sets a tone to divorce proceedings that are unnecessarily acrimonious. The best divorce solicitors know how to approach such delicate issues. Our divorce lawyers always advise the clients to refrain from initiating any proceedings and even correspondence prior to getting proper advice. Our team of experienced divorce solicitors is well versed in navigating sensitive issues and heightened egos. To ensure that allegations put in a divorce petition will not sour any future dealings with the other party, when it comes to financial settlement and child arrangements, we deploy high levels of diplomacy and professionalism, to ensure the other party is aware of the benefits of collaborative approach and thus reach an acceptable compromise. Unfortunately, there are times where this cannot be achieved and hostility leads to unnecessary lengthening and complicating the divorce process.
When the divorce law changes, it will be somewhat easier to navigate such sensitive issues. When no fault divorce begins in the UK there will no longer be necessary to negotiate ‘acceptance of guilt’ by one of the partners.
How does No-Fault Divorce Work?
The divorce reforms were indeed long expected and hard fought for by family law practitioner. And our divorce solicitors welcome these new changes, even though some of the new divorce law requirements can also be seen as quite cumbersome.
Under the new bill, divorce applications can be put forward by either party or by both parties jointly. In this respect there is no significant change.
There will no longer be any need to provide evidence of the alleged behaviour or separation. Instead, the petitioner will be required to file a sworn statement that the marriage has broken down irretrievably. Therefore, the correct wording and form of the statement will need to be observed. The court will take this as evidence of marriage having broken down and will make a divorce order.
In effect, the above mentioned procedure means that there will be no possibility to contest the divorce. Therefore, if one party wants to get a divorce, this will not be possible under the new divorce law, without further complications. This approach is more in tune with the modern realities. In the past, contested divorces, as rare as they were, in most cases were a result of mutual frustration, want of revenge and exertion of control over the other party. They were hardly means of saving the marriage and it is a welcomed change that the legislative has acknowledged these realities.
Under the new rules, the two stage divorce process remains unchanged. The courts will initially need to make a conditional order. There is a mandatory waiting period of 20 weeks from the date the application was submitted, until the conditional order (Decree Nisi) can be made. After this order, following another 6 weeks, the final divorce order (Decree absolute) can be made. This means the entire divorce process will now take 26 weeks (6 months). Many divorce lawyers and practitioners find this to be an unnecessary delay.
How We Can Help with No-Fault Divorces
At RVS Solicitors we have a dedicated team of divorce lawyers, who specialise in all aspects of divorce and family law. Our family legal team is headed by Rakhi Singal, who has extensive experience in complex divorce cases. We are well placed in assisting you with your no fault divorce. If you would like to know more about no fault divorce and whether it is suitable for you, whether you should start proceedings under the current laws or wait for the new laws to come into force, reach out to us for a no fault divorce consultation. We will assess your situation in detail and offer you the best solution tailored to your circumstances. Our lawyers will guide you through all the stages of your divorce, from preparation, to application and getting the final order.