New rules allowing ‘no-fault’ divorce are expected to come into force in 2021, replacing the five current grounds for divorce. The Divorce, Dissolution and Separation Act 2020 was passed earlier this year but it is not yet known exactly when the new rules will take effect.
According to the Office of National Statistics, an estimated 42% of marriages in England and Wales end in divorce. There are around 100,000 divorces a year, although rates of divorce have been falling since the mid-1990s.
The reforms will replace the existing divorce process, which requires one spouse to argue that the other is at fault for the breakdown of the relationship, or choose the much slower route of separation before applying for divorce.
Grounds for divorce: the five facts
Under the current rules, the spouse petitioning for divorce must provide at least one of the five legally acceptable reasons to prove that the marriage cannot be saved. The grounds for divorce, also known as the ‘five facts’, include:
- Adultery
- Unreasonable behaviour
- Desertion (your spouse left you at least 2 years before you apply for divorce)
- Separated for at least two years and your spouse agrees in writing
- Separated for at least five years, even if your spouse disagrees
Unreasonable behaviour is the most common reason given for couples divorcing, accounting for nearly half of all divorces granted to one partner.
We understand what an emotional and highly stressful experience divorce can be, exacerbated by having to prove one of five reasons in current legislation. Fault-based divorce forces couples to play the blame game, even when the decision is mutual and relatively uncontentious. This can set a negative tone for the negotiation of financial arrangements following divorce. For separating parents, it can be much more difficult to focus on the needs of their children when they have to prove a fault-based fact against their former partner.
What is no-fault divorce?
The reforms introduced by the new Act will:
- Replace the five grounds for divorce with a new requirement to provide a statement of irretrievable breakdown
- Remove the ability to contest a divorce
- Introduce the option of a joint application
- Replace the terms ‘decree nisi’ and ‘decree absolute’ with ‘conditional order’ and ‘final order’
These reforms will apply to divorces for both opposite sex and same sex couples, as well as the dissolution of civil partnerships.
Should we wait for no-fault divorce?
For some couples who are just starting the emotional and practical process of ending their marriage, no-fault divorce may be an attractive option. However, there is still a great deal of uncertainty about when the new rules will come into place and there has been some suggestion that it may not happen until late 2021.
At Cartridges Law we welcome the changes, but we also believe that even under the current law it is possible to have a ‘good’ divorce if both spouses are committed to conducting the process in a fair, transparent and respectful way. We’ve put together some tips for achieving a good divorce, which you can read here.
We also support the work of Resolution, an organisation of 6,500 family lawyers and professionals from across England and Wales which believes in ‘a constructive non-confrontational approach’ to family law matters.
We offer a free 30 minute, no-obligation consultation with a divorce lawyer to discuss your circumstances. Contact us to speak to a member of the family law team or to book an appointment.