Family Law - The No Fault Divorce

Author: Baldip Singh Aulak
In: Article Published: Tuesday 09 March 2021

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In this article we will cover the new laws in relation to divorce that should be implemented in the Autumn of 2021.

Divorce, Dissolution and Separation Act 2020

On 26th June 2020, the Divorce, Dissolution and Separation Bill gained Royal Assent and became the Divorce, Dissolution and Separation Act 2020, a welcome occasion, ending years of campaigning to remove the need, when seeking to divorce, to blame one of the parties. The new Act will now allow "no-fault divorce".

 The new Act will replace the five facts of divorce as they currently stand;

  • Adultery.
  • Unreasonable behaviour.
  • Desertion.
  • 2 years separation with consent.
  • 5 years separation (no consent required).

The new no-fault divorce law is due to be implemented in the autumn of 2021.  

Needing or wanting to blame creates an unnecessary distraction for many people engaging in the divorce process where the focus should be on reaching a resolution as quickly and painlessly as possible particularly when there are children at the heart of the family. “Removing ‘Blame’ helps the parents avoid unnecessary conflict when agreeing child arrangements.”

Under the new requirements the 5 grounds for divorce are replaced with a requirement to provide “a statement of irretrievable breakdown”. The statement is required to detail the irretrievable breakdown of the marriage. No further evidence will be necessary to prove that relationship has ended.

1 Divorce on breakdown of marriage

(1) Subject to section 3, either or both parties to a marriage may apply to the court for an order (a “divorce order”) which dissolves the marriage on the ground that the marriage has broken down irretrievably.

It will remove the possibility of contesting the divorce, this is important for victims of domestic abuse whose partner may contest the divorce in order to exert coercive control and which prevents a party from moving on with their life.

The court will take a statement of one or both parties as conclusive evidence that the marriage has broken down.

S1(3) The court dealing with an application under subsection (1) must—

(a) take the statement to be conclusive evidence that the marriage has broken down irretrievably, and

(b) make a divorce order.

It will introduce an option for a joint application this will allow both parties to apply together further encouraging cooperation.

It will make sure the language is plain English for example terms such as decree nici or decree absolute and petitioner will be replaced with more modern terms including conditional order, final order and applicants. This is to make the legislation more accessible and easy to understand by the wider public.

(4) A divorce order—

(a) is, in the first instance, a conditional order, and

(b) may not be made final before the end of the period of 6 weeks from the making of the conditional order.

Marriage is a contract which should not be entered into lightly is the term that we are all familiar and this is true!

The law of England and Wales, has always placed significant importance on the sanctity of marriage. The new Act will introduce a minimum weight period of 20 weeks between the start of the divorce proceedings and the conditional order currently known as the Decree Nici this will allow for a period of reflection, giving couples the opportunity to reconcile, seek mediation or counselling services if separation is inevitable, this period will be useful to discuss important matters such as finance and child arrangements without ‘the blame’ hanging over a party.

The period of six weeks and one day between the conditional order and the final order will remain as it is. So in theory the entire process should take no longer than six months.

Parallel changes will be made of the law governing the dissolution of a civil partnership.

So if you are considering commencing divorce proceedings it is worth waiting for the new law to come into effect later this year.

Doing away with any need to attribute blame for the breakdown of your marriage, potentially reduce any animosity, with a knock on effect which should make it much more likely that arrangements for any dependent children and finances will be sorted out amicably.

BALDIP SINGH AULAK © 2021

BARRISTER

33 BEDFORD ROW

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.