Understanding no-fault divorce Q&A

May 9, 2019

We participated in Solicitors Chat this morning on Twitter answering questions about no-fault divorce and what these changes mean for the divorce process.

Our Trainee Solicitor, Luke Stephens, was on hand to provide some much needed guidance.

We’ve set out our answers out below.

1. What is the current process for divorcing or ending a civil partnership in England and Wales?

Civil Partnership Process

In order to end your civil partnership in England and Wales, you will need to seek permission from the court. An individual can request the court to grant a dissolution order if the Civil Partnership has lasted more than a year.

If the Court is to approve your civil partnership dissolution application, you will need to demonstrate that your relationship has irretrievably broken down. There are four facts you can use to prove this:

• Your partner has behaved unreasonably.
• Your partner has deserted you for a 2 year period.
• You have been separated for 2 years and your partner agrees to the dissolution.
• You have lived apart for a 5 year period.

It does not matter where you entered into the partnership, but in order to dissolve the partnership, you will need to meet certain residence conditions. For example, at least one of you must live in England or Wales. You will not normally have to attend the Court or see the Judge to get a dissolution, unless your partner suggests he or she wants to defend the proceedings. This is quite rare and defended civil partnership proceedings are usually quite costly.

If the Civil Partnership has not lasted a year then it can still be ended but the individual must seek a separation order. However, neither party will be able to register another civil partnership until a dissolution order has been granted by the court.  If the Civil Partnership was not entered into legally an individual can also seek to end it through an annulment order.

Divorce Process

Currently, the divorce process in England and Wales is based on a fault based process. In addition to the four facts that you may rely on for the dissolution of a civil partnership, you must also prove one of the five facts to demonstrate that a marriage has irretrievably broken down.

The five facts are:

• Adultery
• Unreasonable behaviour
• Desertion for a period of 2 years.
• 2 years separation with the partners consent.
• Separation for a period of 5 years.

This fault based process has made divorce particularly complex.

2. How is the law set to change regarding no-fault divorce?

Following a Government consultation into ‘no-fault’ divorce in December 2018, we await the response from the Government which will determine whether the current grounds for divorce are to be modernised.

There have been a number of high profile divorce cases, in particular Owens v Owens, which has drawn attention to the current state of divorce law across England and Wales, which has subsequently, drove forward the voice of change. The Government have since reflected on the situation and recognised that divorce laws need to be adapted to reflect the ever changing demand of society.

Should the government make a decision in favour of a ‘no-fault’ divorce, divorcing couples would see an overhaul and will no longer have to play the ‘blame game’ throughout divorce proceedings. In contrast, it is thought that couples can instead divorce on fairer grounds where the court takes a more sympathetic and supportive approach to the process.

Moreover, such a modernisation of the law would also alleviate the damaging impact the divorce process can have on the children of a family. The current, arguably antiquated system often creates a hostile environment between partners, which in turn has a harmful impact on the mental health of the parties involved. A no fault divorce process would seek to reduce these impacts and alleviate much of the stress.

If the consultation is passed, it would implement the following:

• Couples will be able to give notice jointly;
• allow joint applications to become sole applications (and vice versa);
• remove the ability for one person to contest a divorce;
• retain the two stage process of decree nisi and decree absolute
• introduce a minimum time frame of six months from petition to decree absolute
• Modernise the language used in the divorce process.

The same will apply to the dissolution of civil partnerships.

3. How will the new law impact the family law landscape?

The foundations have been set for one of the most fundamental changes in family law history and it will most certainly have a dramatic effect on family law in practice. The crux of the modernisation of the law is to take away the stress of the current divorce process.

By avoiding a process which encourages hostility, it can be argued that this will allow families to function and recover more effectively. The new law will therefore reduce the impact that divorce can have on children who become embroiled in the current process. Children will likely be major beneficiaries of no fault divorce.

As far as timescales are concerned the modernised law is unlikely to speed up the process of divorce as the main focus is on ended the relationship on a more amicable basis. There have been concerns for some time that the introduction of a no fault divorce would undermine the whole principal of marriage. However, the new law seeks to compromise between reform and preserving the concept of marriage.

A further point to consider is that the Family Courts are currently under huge strain and therefore, fewer lengthy divorce cases are likely to support the system as a whole and reduce the pressure on administrative staff.

4. How will the change in law affect clients and the whole process of divorce?

As above-mentioned, the most positive change that the law is likely to have on the divorce process is the alleviation of stress and anguish caused to the whole family. Removing the initial ‘mud-slinging’ battles will arguably help parties understand that the best way forward is to work together in the best interest of the family.

Additionally, in marital breakdowns where children are involved and child arrangements need to be decided, it is likely that given the parties have not sought to blame each other for the break down, agreeing the next steps for the children will be less acrimonious. This also paves the way for healthier co-parenting in the future.

5. Will people currently going through a divorce be impacted by the change in law?

Those who have started a divorce under the current process are unlikely to be affected by the introduction of no fault divorce once they have started the process.

6. How can a solicitor help you know where you stand if your relationship breaks down?

A common concern from individuals following a break down of a relationship is that seeking the help and advice of a solicitor sets in stone the future of the relationship. It is crucial that individuals understand that solicitors are not there to escalate the matter but will evaluate the situation and advise on the best course of action to take.

A solicitor can therefore simplify the matter and otherwise complicated circumstances and tailor there advice around the facts.

For further advice on divorce related matters, contact our matrimonial department and book an initial consultation with one of our experienced divorce Lawyers on 0800 158 4147.