The divorce process in England is to fundamentally change in what’s being dubbed “the biggest shake-up of divorce laws for 50 years” as new ‘no fault divorce’ legislation comes into force.
January has traditionally been known as “divorce month” in the family legal sector as the number of new divorce enquiries spikes each new year. In 2022, however, April may be ‘divorce month’ when the Divorce, Dissolution and Separation Bill becomes law, allowing couples for the first time to get divorced or dissolve their civil partnership more easily without attributing blame to one party.
What is the current divorce law and how will it change?
For centuries English law has required separating couples to provide proof of a marriage irretrievably breaking down before the family court will grant a divorce. Couples therefore have to prove either adultery, desertion or otherwise unreasonable behaviour to legally bring their marriage to an end. The only alternative is to show they have been separated for at least two years, or for five years if one party does not want to get divorced.
Under the new law, couples will be able to divorce without attributing blame and the ability for one party to contest divorce proceedings will also be removed in most cases. In my view, this is a welcome overhaul that should save money, time and most of all acrimony for couples. Couple can also make joint applications which is in line with many separating couples’ wish to remain amicable and to approach matters on a conciliatory and joint basis. There will be time included in the process for reflection but ultimately the law will trust individuals to decide if their marriage is over with less judicial scrutiny and discretion involved.
“No fault divorce” has already been introduced in Scotland in 2006 where in general the system for resolving family disputes is seen to be less adversarial. The new law will come into force in England and Wales on 6th April 2022.
Why I welcome the new “no fault divorce” law in England and Wales
While it may seem a reasonable strategy to have a two-year separation period before the divorce can be finalised the limbo that this leaves couples in can in my experience become a breeding ground for increased animosity, as frustration levels rise while individuals feel that they are not able to move on with their lives. This can be particularly dangerous for abusive marriages in which abusers often fight against a divorce as part of a pattern of control although in those cases an earlier divorce on the fact of unreasonable behaviour would normally be appropriate in any event.
Additionally, should it really be for the courts to decide whether one party’s actions are “unreasonable” enough to “allow” couples to divorce? In the well-known case of Owens v Owens, the Supreme Court ruled “with reluctance” in 2018 that Mrs Owens could not divorce her husband until a period of five years had elapsed, despite them having lived separate lives since 2015. She made 27 allegations about how her husband had treated her but her husband denied the allegations and on balance the Court felt they did not meet the threshold meaning the divorce could not take place until they had been separated for a full five years.
This approach to legislation feels outdated and patriarchal in the modern world. In my view, it does a disservice to the couple who have mutually agreed that their marriage has run its course and who wish to move forward with a fresh start where they can be happier and co-parent amicably from an empowered position of shared agreement (over plans for their children and how they will separate out their marital assets) and independence (from each other).
The majority of my clients do not want to have to go through a legal process in which they, or their spouse, has to “blame” the other in some way for the breakdown of the marriage. Most are seeking to divorce with dignity through a constructive, collaborative approach. Pragmatically, my clients often prefer to concentrate their time and their lawyer’s time (and fees) on working out the arrangements for their finances or children, rather than going through the history of their relationship breakdown.
Are there any downsides to the new divorce law?
Some commentators have described the law change as “an attack on family life” and have raised concerns about how it may encourage more couples to rush through a divorce.
However, a study in the US where Ronald Reagan, as governor of California introduced the first US “no contest” divorce in 1969, found that while there was an initial rise in petitions after the law change, the rise was just transitory and dissipated over time.
We might therefore expect a spike in applications here from April from people who have been waiting for the legal change, but that numbers will settle back down once these initial applications have gone through.
More importantly, the US study also found that in those states that introduced the “no contest” law, domestic violence decreased by around a third and the murder rate of women by partners by about 10%.
It will be interesting to see whether there is a “rush” of applicants under the new law. I certainly have clients who are waiting for the new legislation to come in before they start the process.
For most people, there will never be a “good” time to start the divorce process. But those of us working in family law hope that with the new legislation – which comes with more accessible and modern terminology and much less focus on blame – will mean that we can better assist anyone who does start this process and help them navigate through their divorce journey in a less painful and confrontational way.
More information about the new law and how it affects couples who are separating or divorcing can be found on our dedicated No Fault Divorce information page.
For advice on divorce including complex financial matters relating to land and businesses, contact family lawyer Teresa Davidson, partner at Silk Family Law and head of our family law Leeds office, on 07712 937747 or firstname.lastname@example.org.