Currently, in the UK there is only one legal ground for divorce – the ‘irretrievable breakdown’ of a marriage – and couples must cite at least one of several ‘legitimate’ reasons why they want to split.
However, the ‘Divorce, Dissolution and Separation Bill’, or ‘No-fault Divorce Bill’, is expected to be implemented in Autumn 2021 and will see the divorce process finally be brought into the 21st century, allowing couples to resolve matters in a dignified and amicable way.
So, what does current divorce law entail whilst we wait for these changes to come into effect, and what exactly will the No-fault divorce law mean for couples who are looking to part ways? Lucinda Holliday, head of family & divorce at Blaser Mills Law helps us to understand.
Current divorce law
Under existing UK divorce law, anyone seeking a divorce must have been married for at least a year and be able to provide evidence of one or more of five ‘facts’ to establish the ‘irretrievable breakdown’ of the marriage. Three of these ‘facts’ are based on ‘fault’, and the other two are instead based on a period of separation.
The ‘fault’ facts are: ‘behaviour’, ‘adultery’ and ‘desertion’, and the separation facts are ‘two years’ separation with consent’ and ‘five years’ separation without consent’.
‘Behaviour’ is defined as when a husband or wife has behaved in such a way that their spouse cannot reasonably be expected to live with them, and can include physical violence, verbal abuse – such as insults and threats – drunkenness or drug-taking, and refusing to pay towards shared living expenses.
For a spouse to use the adultery fact, their husband or wife must have had sexual intercourse with someone else. However, adultery cannot be given as a reason if the couple has lived together for more than six months after the spouse found out about it.
Though same-sex couples can’t use the adultery fact, a person within a same-sex relationship can cite behaviour and rely on an inappropriate relationship their partner has had with another man or woman.
For desertion, a husband or wife must have left the marital home for at least two years before their spouse can apply for divorce, and a divorce can also be applied for if a couple has been separated for at least two years and both parties agree to it, as long as the agreement is made in writing by the applicant’s husband or wife.
If a couple has been separated for five years or more, a spouse can begin divorce proceedings even if their husband or wife disagrees with it.
While divorce petitions can be defended, doing so is unlikely to be successful if the petition has been drafted properly. Divorces are rarely denied, and can, in certain cases, be refused if one person claims they will suffer great hardship, like financial difficulties, as a result.
What the No-fault Divorce Bill will mean
One of the key criticisms of current divorce law that the No-fault Divorce Bill seeks to redress is the so-called ‘blame game’ that arises when one spouse has to make accusations about the other’s conduct, or otherwise face years of separation before the divorce can be granted.
The proposed bill will remove this altogether by allowing one spouse – or the couple jointly – to provide a statement of irretrievable breakdown.
What’s more, it will prevent one partner from contesting a divorce sought by their spouse, which in some cases has enabled domestic abusers to tighten coercive control over their victims.
Another new measure brought by the law is that there will need to be a minimum period of 20 weeks from the start of proceedings to confirmation to the court that a conditional order of divorce can be made.
This will give couples a greater opportunity to agree on practical arrangements for the future where reconciliation is not possible and divorce is deemed inevitable.
The six-week period between the Conditional Order and when the Final Order can be made will be retained from existing law, in which the same period is required from Decree Nisi to Decree Absolute.
The changes brought by the bill have been hailed by the Government as ‘the biggest shake-up of divorce laws in half a century’ and will not only minimise the impact that allegations have on couples but on children also.
Should people wait for No-fault Divorce to come into effect?
The expected timeframe of Autumn 2021 for the No-fault divorce law to be introduced has left many wondering whether they should wait until then to apply for a divorce.
If a person is ready to divorce now, it could be in their best interest simply to go through with it, given most divorces are passed without issue because both parties are in agreement that the relationship has broken down irretrievably.
However, there are certain circumstances in which people may prefer to wait for No-fault Divorce to be enacted, for example, if a spouse has an acceptable reason to divorce – such as adultery – but their partner has told them that they will challenge the application and take them to court. These threats often amount to nothing but are worth discussing with your solicitor. Once the No-fault Divorce law applies, the partner would not be able to challenge the application and the spouse could avoid the stress and cost of court proceedings.
Another circumstance where it might be best to wait is if a spouse has been separated for five years but knows their partner will challenge the divorce on the basis that it will cause them financial hardship. In this case, rather than going to court to argue their case, they might find it easier, cheaper and less stressful to hold off for another year until No-fault Divorce comes into effect.
While detractors of the No-fault Divorce Bill argue that it will encourage more people to apply for a divorce, many legal experts believe this is simply not the case, and it will instead be a very welcome breakthrough for those who want to end their marriage without getting caught up in a ‘blame game’.
Though no one enters a marriage wanting it to end, it is important to reflect upon the conflict that can arise from the requirements of existing UK divorce law, and how the anticipated new legislation could help make proceedings much smoother and less traumatic for all concerned.
Anyone who is unsure about whether they should apply for a divorce now or wait for No-fault Divorce should consult a qualified family lawyer with experience in divorce law, who will be able to assess their unique circumstances and help them reach the best outcome.