From 6 April 2022 The Divorce, Dissolution and Separation Act 2020 will come into force, introducing the no fault divorce process in England and Wales. The no fault divorce legislation will apply to civil partnerships as well as to marriages. B P Collins’ family team, explain what this means for couples wishing to divorce.
Currently people in England and Wales who wish to divorce must show that the marriage has broken down irretrievably and may do so by relying on one of the five following facts
3 Unreasonable behaviour;
4 Two years separation with consent;
5 Five years separation.
For those who do not wish to wait for a period of separation of at least 2 years, their only option is to attribute the breakdown of the marriage to their spouse’s behaviour, by relying on unreasonable behaviour, adultery or desertion (albeit very rarely used now days).
The most common fact in support of divorce in England and Wales is unreasonable behaviour, however this causes a number of issues, not least because the current blame-based system leads to increased acrimony between the parties, which is often detrimental when seeking to resolve financial and children matters.
What changes will take place from 6 April 2022
People who wish to divorce will no longer have to rely on any facts to prove that the marriage has irretrievably broken down, or attribute blame to their spouse for the breakdown of the marriage. This is a welcome change to both practitioners and the public alike, which reforms an antiquated divorce system which many people feel is unsatisfactory and unnecessarily adversarial. Essentially, if one party wishes to exit the marriage because they believe the relationship has irretrievably broken down, they will be able to do that without needing the co-operation of the other party.
We will see a change in the legal terminology following the introduction of the new Divorce, Dissolution and Separation Act 2020 and the terms “decree nisi” and “decree absolute” will respectively be referred to as the “conditional order” and “final order”, which many feel is far more user-friendly.
The new legislation also introduces a 20 week cooling off period, to prevent parties from making (potentially) rash decisions. The 20 weeks will run from the start of proceedings until the date the Court can confirm the parties are entitled to a divorce. It is hoped that this will allow couples greater opportunity for reflection, and, where reconciliation is not possible, time to plan and agree practical arrangements for the future. While those seeking a divorce will have to wait at least six months before they can obtain a final order, which ends the marriage, the current climate dictates that many have to wait at least this long now, so the process will not necessarily be longer.
Under the new legislation, a statement of irretrievable breakdown can be presented by both parties should they wish to do so, and either party can then apply for the final order six weeks after the conditional order is granted.
Finally, the new legislation will remove the possibility of defended proceedings. While defended proceedings are rare, these can be hugely time consuming and disproportionate in terms of costs.
Will no fault divorce make divorcing easier?
No fault divorce will mean that the current facts relied upon to prove irretrievable breakdown of the marriage will fall away, but divorcing couples will still be required to demonstrate that their marriage has irretrievably broken down. It is therefore not expected that couples will be allowed to divorce without proper consideration. There should, however, be less acrimony in the process.
Should separating couples wait for no fault divorce?
Now that no fault divorce is to come into effect in England and Wales from 6 April 2022, separating couples are now faced with a choice. Should they proceed with a fault-based divorce or should they wait until April 2022? There is no right or wrong answer, however we strongly recommend that people wishing to divorce obtain advice at the earliest opportunity, so that they are aware of all of their options and can make a decision based on their own personal circumstances.
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