No Fault Divorce Reform (Again)
  • 19th Jun 2020
  • Article written by Natalie Tappenden
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On 18 June, MP’s overwhelmingly voted for the Divorce, Dissolution and Separation Bill, which will amend existing divorce laws, and simplify the requirements for obtaining a divorce.  The Bill has still to receive Royal Assent before it becomes law, but when it does, it will herald a long-awaited reform of divorce laws, primarily seeing the removal of “fault” from the divorce process.

This Bill has had a troubled past.  Originally introduced in June 2019, the Bill was abandoned when Boris Johnson prorogued Parliament.  After the Supreme Court ruled against the Prime Minster, and Parliament was recalled, the Bill was reintroduced.  However, when the December 2019 General Election was called, the Bill was abandoned for a second time.

It was thankfully reintroduced in 2020. 

Current law

Under current law, a divorce can only be obtained by establishing one of five “facts”:

  • adultery, 
  • behaviour considered to be unreasonable, 
  • two years desertion, 
  • two years separation and both parties consent to the divorce, and 
  • five years separation, which does not require the consent of the other party. 

If neither party is in a new relationship, and unless the parties are prepared to wait at least two years, the only basis for a divorce is by one party making allegations concerning the other parties behaviour. 

While it is often possible to agree such allegations, and to draft them in a fairly “mild” fashion, this can be distressing for couples.  It can also serve to increase tensions, and encourage disputes.  

In occasional cases, the divorce can become formally defended, requiring court hearings and a judge to rule on allegations of behaviour.

Why Reform?

Family lawyers have been seeking the removal of the requirement to allege fault for some time.  When couples agree the marriage has broken down, the need to allege fault can be distressing, contentious and serves to increase legal fees.

The turning point in the case for reform came in 2018 when The Supreme Court ruled that Mrs Tini Owens could not divorce her husband, despite her having had a new relationship, and having been separated since 2015.  

Her husband would not divorce her, and would not consent to a divorce.  As five years separation had not passed, she could only try to divorce him based on his behaviour.  

He sought to defend this, and after various court hearings, the Supreme Court (despite considerable sympathy for Mrs Owens) ruled that the behaviours she had alleged did not entitle her to a divorce.  This provoked considerable public sympathy her, and shortly following that, the Government made plans to reform the law.

What Are The Changes?

The five facts will be dispensed with, and the marriage can be dissolved by a statement of irretrievable breakdown.  This will avoid separating couples having to either allege fault, or wait at least two years before a divorce.  

The scope of a divorce becoming defended will also be removed, so if passed, it will simplify the process, and allow couples to focus on issues such as arrangements for their children or division of their finances.

The possibility of a joint request for a divorce will also be introduced, something not possible under current law.

The changes only effect obtaining a divorce; the laws relating to children and the division of finances will not change.

When Will The Changes Take Place?

The Bill has yet to receive Royal Assent before it becomes law.  Royal Assent is a relative formality, as it is always given to Bills which have been given Parliamentary approval.

Even once it does become law, there will be some further time before divorcing under the new procedure becomes available; new systems need to be set up, and new forms devised.  On 18 June, Robert Buckland, the lord chancellor, estimated the reforms would be implemented by autumn 2021.

Until then, all divorces must take place under current law.

If you would like more information, please do not hesitate to contact a member of the family team at Whitehead Monckton, who can update you on the current position.