The Divorce, Dissolution and Separation Bill has now been approved by parliament, subject to receiving royal assent, thereby introducing the process for a ‘no fault’ divorce. However, the Lord Chancellor, Robert Buckland, has indicated that the likely timescale for implementation of the statute is unlikely to be until autumn 2021.
The current position, as set out in the Matrimonial Causes Act 1973, provide that it is necessary to show that the marriage has irretrievably broken down by proving one of five grounds. Where spouses are separated for two years and agree by consent, or apart for five years (when consent is not required), they can obtain a divorce. However, in the absence of these periods of separation, one partner must prove to the court that the other partner has committed adultery or behaved unreasonably, or deserted the other for a period of two years.
Family Law solicitors will invariably advise clients, in circumstances when a petition is to be based upon unreasonable behaviour, that the allegations should be as low key and uncontentious as possible, so as not to cause distress or upset to the other party. However the court, as shown in the case of Owens v Owens, still requires sufficient details of unreasonable behaviour to evidence irretrievable breakdown of the marriage. In the case of Mrs Owens’ divorce petition for unreasonable behaviour, the court dismissed her divorce petition and therefore her divorce petition failed.
The new 'no fault' divorce legislation will mean that couples will be able to petition for divorce jointly (although it will still be possible for one spouse to issue a divorce petition) without having to rely upon specific grounds for divorce ('no fault'). There is also a minimum overall time frame of 26 weeks, made up of a new period of 20 weeks between the start of proceedings and when the application can be progressed to conditional order of divorce (Decree Nisi), and then the current minimum time frame of six weeks between the grant of the conditional order (Decree Nisi) and when the order can be made final (Decree Absolute).
Whilst the new legislation is welcomed in order to negate the need for ‘fault’ being attributed to one or other party, at the present time the existing law will continue until ostensibly autumn 2021.
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The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.