Personal Law
May 22, 2019

Change in divorce law - The blame game

No-fault divorce is likely to be introduced, but professionals say a fair deal on asset sharing means mediation must remain top of the agenda.

The news that no-fault divorce is likely to become law has been welcomed, but while the legislation waits for its place in the parliamentary calendar, families must continue to deal with one party being “blamed” for the breakup or wait for the change in the law.

With the parliamentary calendar full of another divorce – the UK’s departure from the EU – no date has been given for debating the changes.

Official statistics show that almost half of all Divorce Petitions issued between 2016 and 2018 cited behaviour as the reason for ending the marriage, rather than a required period of 2 years or 5 years separation. However, whilst signalling the likely shift to mutual agreement, the Ministry of Justice announcement sets out plans for a minimum six month timeframe from lodging a Petition until final Decree, so that couples have time for reflection before securing a divorce. Somewhat perversely, the existing required separation periods have actually encouraged a would-be Petitioner to rely upon the fact of behaviour, so as not to have to delay issuing a Petition.

Professionals have welcomed the potential change in the law saying it will help couples to focus on non-combative negotiations when it comes to agreeing family arrangements or dividing up assets when the marriage ends.

Said Family Law specialist Kevin Johncock of Berry & Lamberts Solicitors:

“The blame-game can further inflame relations that are already strained by a breakdown, so this move is certainly one to be welcomed and hopefully it will signal a general shift towards a more conciliatory approach to divorce in future, as there will always be a need for negotiation between couples.

We are dealing with increasingly complex financial and family arrangements, as many couples undertake second and subsequent marriages, often with children from previous relationships. It means that even in the most amicable of divorces, it is to be expected that each side will wish to secure the best outcome in terms of asset sharing, but mutual agreement, rather than disagreement is the outcome we strive for.”

He added:

“It makes mediation an important aspect of the divorce process, particularly where children are involved. Many people don’t want to face their husband or wife but it’s a flexible process and no one is made to do anything that makes them uncomfortable. Having a legal advisor with you helps in overcoming any worries of feeling intimidated or cornered. The main difference to going straight to court is the focus on both sides being at least relatively happy with the outcome involving give and take. Whereas the Judge has greater discretion and does not have to come up with a solution that everyone likes.”

“At present, unless a permitted exemption can be claimed, it is compulsory for an applicant for Financial Remedies or Children Act private law proceedings, to attend mediation. While there is much emphasis on mediation, if the Respondent refuses to attend there is nothing to compel him or her to do so and the intended impact of mediation is therefore lost. So currently a Respondent can thwart the mediation process and this is a real weakness in the present system. That being said, it has never been necessary for a Petitioner to attend mediation before starting a divorce suit. It is only when financial or children applications are required that mediation is necessary.”

There is one ground for divorce under the existing Matrimonial Causes Act 1973 which is irretrievable breakdown. This requires a Petitioner to prove their partner is at fault through adultery, desertion or unreasonable behaviour. Alternatively, and only if both sides agree, they can part after 2 years of separation. If one of the facts mentioned is not relied upon, then the period of separation is extended to living apart for 5 years where no consent of the other party is required.

The proposed legislation includes:

  • Irretrievable breakdown of a marriage to remain the sole ground.
  • The option of a joint application for divorce alongside retaining the option for one party to initiate the process.
  • Removing the ability to defend the divorce.
  • Continuing to have a two-stage legal process, known currently as the Decree Nisi and Decree Absolute.
  • Introducing a minimum timeframe of 6 months from the date of lodging the Petition until final Decree with 20 weeks from Petition date to Decree Nisi and a minimum period of 6 weeks from Decree Nisi to Decree Absolute.

The proposed bill to change the law is eagerly awaited.

To discuss any family legal matter or issue, you can contact Kevin Johncock or the Family team on 01892 526344.

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

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