No-fault divorce: Reducing conflict.

In England and Wales the law governing divorce is found under the Matrimonial Causes Act 1973. Under this legislation the petitioning spouse is required to prove one of five facts before the court can determine that the marriage has irretrievably broken down.

Two of these five facts are separation based which requires divorcing couples to be separated prior to issuing divorce proceedings for either two years, where both parties agree to divorce, or for five years where divorce is not agreed. Unsurprisingly, many separating couples are unable to wait for these separation periods to elapse which is why parties often rely on one of the three conduct or fault based facts, adultery, unreasonable behaviour or desertion.

Whilst there is a benefit in petitioning based upon one of these fault based facts in that divorces can be finalised quicker, often when one spouse makes upsetting allegations about another spouse’s conduct it results in increased animosity and conflict during an already difficult time. This can be particularly distressing for any children of the family stuck in the middle of the breakdown of their parent’s relationship and in an attempt to remedy this, the Government have put forward proposals to reduce family conflict in the way marriages and civil partnerships end.

Under these reforms parties will still need to demonstrate to the court that there has been an irretrievable breakdown of the marriage, however rather than evidence this through the other spouses conduct or a lengthy period of separation, either the person seeking the divorce, or possibly both parties together, would provide the court with a statement of irretrievable breakdown.

It is hoped that by enabling separating spouses to make joint applications for divorce that it will encourage a less hostile and more collaborative approach to separation which will be of assistance when discussing arrangements regarding the children and the separation of finances.

It is proposed that these reforms would introduce a minimum timeframe of 26 weeks for the divorce process, made up from 20 weeks from commencement of proceedings to decree nisi and six weeks from decree nisi to decree absolute. The purpose of this minimum timeframe is to allow separating couples enough time to reflect on their decision to separate and to provide enough time resolve the arrangements in respect of the children of the family as well as the finances.

It is expected that the new legislation will be introduced as soon as parliamentary time becomes available and most likely not before Britain’s exit (divorce) from the EU. Changes to the law are always dealt with proactively by our Family Law department and we look forward to the implementation of these reforms, which promise a far less antagonistic divorce process. We are hopeful that the introduction of non-fault based divorces and the six-month timetable will change and improve the way that divorce works in England and Wales for the better.

If you are contemplating divorce or separation proceedings please contact either Amy, Jerry or Nardia on 01702 352511.

Author: Amy Hadley