The UK could see the biggest shake up of divorce laws for 50 years after the Divorce, Dissolution and Separation Bill, introducing no fault divorce, was backed by MPs on 8 June 2020.
Under the current law, there is only one ground for a divorce – that the marriage has broken down irretrievably. This must be evidenced by one of the following five facts:
- unreasonable behaviour
- separation, for a period of two years and you both consent to a divorce
- five years separation, without mutual consent to a divorce
If you do not want to wait a period of two years, or five years if your spouse does not consent, you will have no option but to commence proceedings on the basis of your spouse’s unreasonable behaviour or adultery, if applicable. This is not ideal for a couple who have reached a mutual decision to divorce and simply want to move forward with their lives as quickly as possible.
In practice, reliance on the adultery or unreasonable behaviour fact can increase animosity and conflict between couples from the very outset which in turn can impact on the financial negotiations and child arrangements.
This much awaited change to the law will remove the ‘blame game’ and allow couples to simply make a statement of irretrievable breakdown without having to cite one of the five facts. The statement can be made by one spouse or the couple jointly. It would also remove the possibility of contesting the divorce which can be a very costly and stressful process. There would be a minimum period of six months required from the issuing of the petition to obtaining Decree Absolute.
There is no doubt that going through a divorce is a very difficult and fraught time for many couples and tensions run high. However, it is hoped that the proposed changes to the law will help to reduce unnecessary conflict, make starting the divorce process easier and allow couples to focus on the important areas of child arrangements and reaching a financial settlement.
Is it worth waiting for the new law before starting the divorce process?
It is not yet clear when the proposed changes will become law, however it is likely to take some time and we could have to wait until next year. Whether you issue proceedings now or wait for the new law will depend on your individual circumstances. For those who have not been separated for two years you will have to rely on the adultery fact, if applicable, provided your spouse is agreeable, or the unreasonable behaviour fact. When making a decision, you should bear in mind the following:
- the behaviour examples cited in the petition do not have to be contentious and can be drafted neutrally
- the petition can be shared with the other spouse before it is lodged at court so you can agree the wording as far as possible
- the divorce petition is a private document which will only be seen by the court and your legal advisers
- the reason for the divorce is not stated on the final Decree Absolute document.
Furthermore, relying on the adultery or unreasonable behaviour will not impact on the financial settlement or child arrangements unless it is very serious personal or financial misconduct.
If you are considering commencing divorce proceedings or would like further information on any aspect of this article, please contact a member of our specialist family law team who will be able to guide you through the process.