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Divorce procedure to be simplified offering a 'no-fault' option

20 Apr 2021

Updated 08/06/21 – The Government has confirmed that long awaited reforms to divorce laws will come into force on 6th April 2022.  This is later than anticipated but is said to be to ensure that the necessary IT changes are made to the on-line divorce system, so that the change happens smoothly.  The delay is disappointing but it is good to have some certainty about when the reforms will come into force.

From approximately Autumn 2021 the divorce procedure is to be simplified as follows:

  • If one spouse decides the marriage has irretrievably broken down, they can apply for a divorce without needing to blame the other party for adultery and/or bad behaviour, and/or without having to have lived separately for a number of years;
  • It creates the option of a joint application for divorce, alongside retaining the option for one party to initiate the process;
  • It removes the ability to contest a divorce; and
  • It introduces a minimum timeframe of 6 months, from application to final divorce: twenty weeks from the application stage to the decree nisi (to be re-named “conditional order”) followed by six weeks from the decree nisi to the final, decree absolute stage (to be renamed “final order”).

It is felt that establishing the minimum initial twenty week timeframe will provide the applicant with a meaningful period of reflection and the opportunity to turn back. The divorce will not be automatic at a fixed date at the end of the minimum timeframe, and will still require the applicant to confirm that they wish for the divorce process to be concluded.

The requirement that the parties have to wait until they have been married for 12 months still remains, despite the reforms.

The same changes will also be made to the law relating to the dissolution of a civil partnership which broadly mirrors the legal process for obtaining a divorce.

The changes are well overdue and welcome.

The present law dates from the late 1960s and requires one spouse to accuse the other of adultery; behaving in such a way that one party cannot reasonably be expected to live with the other party; or desertion, before they can apply for a divorce, (the “fault based” facts) or wait for two years after separating and hope that the other party will agree, or wait for five years after separating.

Divorce Decree

 

This means that when a marriage has broken down and people want a fresh start and a new beginning, they have to look backwards and blame the other party in order to apply for a divorce, which inevitably increases conflict at what is already a very emotional time, and can be damaging to children because the relationship between the parents is undermined because of the legal process.

There is a considerable amount of evidence that parental conflict is damaging to children’s wellbeing and chances in life, and it is welcome that the government has decided to scrap the fault based system.

Between 2016 and 2018, almost 60% of divorce applications were on “fault based” facts (the behaviour fact accounting for nearly half of all divorce applications) and 40% were based on separation facts.

It is hoped that after the introduction of the new law couples will be more likely to work together collaboratively to arrive at solutions to issues that arise on separation, because hostility will not have been created by a party having to apportion blame to bring the marriage to a legal conclusion.  All being well, parents in the future may be able to put aside the reasons why their marriage did not work out and look forward to a fresh start where they make their children the first priority when making arrangements for when the children spend time with each parent and how their finances can become disentangled.

For further information, please contact Nicola Matthews on 0191 232 8345 or via Nicola.matthews@hay-kilner.co.uk