New legislation to mark an end to the divorce ‘blame game’

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Divorce is often seen as a contentious process causing stress and anxiety. The emotional upheaval is not eased by the current law, by virtue of what a party seeking a divorce must establish right at the outset. However, there is light at the end of the tunnel.

Under existing law, the single ground for divorce in England is the irretrievable breakdown of the marriage evidenced by one of five facts:

  • adultery
  • unreasonable behaviour
  • desertion
  • two years separation with the respondent spouse’s consent
  • five years separation without the respondent’s consent

This has the effect that if a married couple have simply fallen out of love or grown apart, they have two options. They can either wait two years after separating to present a divorce application or, if they do not want to wait two years, they have to ‘play the blame game’ and agree who should be considered to have behaved unreasonably and be held culpable for the irretrievable breakdown of the marriage.

Whilst the ‘fault based’ facts under the existing law have their place, the issues that arise (in my experience) are twofold. Firstly, the law is outdated and has been slow to respond to the change in family dynamics, and shifting views on divorce. Whilst the decision to seek a divorce is never taken lightly, it’s no longer the case that it carries the stigma it once did and is now generally more accepted across society. However, the law still does not readily accept a married couple wishing to divorce and demands that a party must be at fault and thus “intolerable to live with” to warrant applying for a Decree of divorce immediately. For those married couples who do not wish to place blame, the current position forces them to remain married, and therefore financially tied to one another, for two years following their separation, so that the law can be satisfied that there is no possibility of a reconciliation.

The second issue is the emotional aspect. When a decision to separate with a view to getting a divorce is made, in most cases both parties just want to get on with the process. Parties should be praised where they are able to come to amicable arrangements between themselves and both seek independent legal advice to formalise those arrangements. When seeking that advice, they are often then presented with this legal hurdle and emotional burden of assigning blame in order to begin divorce proceedings in the absence of two years separation, to enable them to formalise the financial arrangements.

This situation can have negative implications for both parties. Where parting couples have sought to approach the separation in a relatively uncontentious manner, neither of them wish to then cite examples of one party’s unreasonable behaviour. Being required to do so can be unpleasant and hurtful for the party subject to those examples, and can begin the negotiations that follow for finances and child arrangements on a sour note.

As lawyers, we often justify the examples of unreasonable behaviour as a ‘means to an end’ but, after a long wait, positive change is on the horizon.

Ministers have now confirmed that the Divorce, Dissolution and Separation Act 2020 will come into force on 6 April 2022. The reform will see the removal of the ‘blame game’ by abolishing the requirement to prove one of the five facts listed above.  The law will instead allow either party or both parties, to apply for an order of divorce on the ground that the marriage has broken down irretrievably. This will remove the conflict at the outset of the divorce proceedings and comes as welcome news to both divorcing couples and Family Law organisations, such as Resolution, which have been campaigning for no fault divorce for years.

However, this does not necessarily make the divorce process any quicker, and the concept of a ‘quick divorce’ remains just that. The Divorce, Dissolution and Separation Act maintains the requirement to establish that the marriage has broken down irretrievably, and the law still needs to be satisfied that there is no prospect of a reconciliation between the parties. Thus, a period of not less than six weeks between a conditional order of divorce (equivalent to Decree Nisi under existing law) and the final order of divorce (currently known as Decree Absolute) is preserved under the new legislation.

Additionally, the party (or parties) applying for the divorce, may not give confirmation to the Court that they wish for the divorce application to continue before the end of the period of 20 weeks from the start of proceedings. This differs from the existing procedure whereby, once a respondent has filed his/her Acknowledgement of Service, the applicant spouse is free to make their application for Decree Nisi.

Whilst the timescales remain mostly unchanged in obtaining a divorce, the new law will provide a less daunting and emotionally charged first step into divorce proceedings.