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6.07.21

Delay to no fault divorce

The sea change in family law due to be brought about under the Divorce, Dissolution and Separation Act 2020 has been delayed by at least six months. Under the bill, this autumn was meant to see the introduction of ‘no fault’ divorce into England and Wales.

Under the current law, laid out in the Matrimonial Causes Act 1973, couples must demonstrate an ‘irretrievable breakdown’ of the marriage, evidenced by one of five ‘facts’:

  • Adultery (by the other person, not the person petitioning)
  • Unreasonable behaviour
  • Two years separation (with both parties consenting to the divorce)
  • Five years separation
  • Desertion (separation with one party leaving with the intention to end the marriage and never to return to live together)

The most common of these was (and shall remain for the time being) unreasonable behaviour. This necessitates a petitioning spouse listing a series of examples of behaviour they consider make it unreasonable to live with their spouse any longer, which will be considered by the court (although applications are rarely rejected on the grounds there is not enough fault). One of these examples could be their spouse’s adultery, and this method of smuggling adultery in as a reason for divorcing without relying on the adultery ‘fact’ is quite common in order to avoid the need for the spouse to formally admit the adultery in writing, or for evidence of the adultery to be provided. Where solicitors are instructed, we try to keep the examples given as anodyne as possible whilst still satisfying the legal requirements, in an attempt to keep tensions at the outset to a minimum. However, where petitioners are increasingly availing themselves of the new online divorce portal and drafting petitions themselves, the divorce particulars can become lengthy, confusing, and vitriolic.

As we wrote back in May, this was due to change in late 2021, with the new rules bringing in a system where neither party would have to blame the other for anything in order to obtain a divorce. Proponents from all across the family law world, including lawyers themselves and action groups such as The Marriage Foundation have long hailed this as a reform appropriate to the modern era which would in no way damage the substance of marriage itself. This author feels it is high time for such a system – in fact many people already think that we have it and that divorcing is just a matter of one spouse ‘signing on the dotted line’ (and why not?).

Unfortunately, bringing divorce proceedings into the modern era is the very reason there is now a delay – it has been reported that the Ministry of Justice has issued an update that the government is not going to be able to meet its target for redesigning all the necessary court forms and online framework for an amended portal in time, and that as a result of this the change in the law itself is being delayed to match.

We can only hope that the reforms are introduced as soon as possible.  The amended timetable has a target date of April 2022.

 

Click here to find out how Brett Wilson LLP's family law solicitors can assist you with divorce matters.


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Articles are intended as an introduction to the topic and do not constitute legal advice.


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