After years of delay, in April 2022, no-fault divorce will become a reality in England and Wales. Swindon Family Lawyer, Catherine Smith, considers the new procedure. Catherine is available on 01793 615011, or by email at firstname.lastname@example.org.
Although it still seems too good to be true, after years of campaigning, 2022 will be the year that no-fault divorce finally becomes law. On 6th April, after an impossibly long journey, the Divorce, Dissolution and Separation Act 2020 (“the Act”) comes into force. The Act amends the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004, allowing one or both parties to apply to the court for a divorce/dissolution on the basis that their marriage/civil partnership has broken down irretrievably.
Crucially, in the case of marriage, the new law removes the requirement to apportion blame, which under the current law is necessary, unless the parties are able and willing to wait for at least two years to divorce based on their period of separation.
The Act received Royal Assent on 25th June 2020, and it was originally hoped that it would come into force in the Autumn of 2021. But in June 2021, the government announced a delay to allow for changes to the Court Service’s IT systems which had run into technical issues and delays as a result of the pandemic.
In 2017, a major study by researchers at the University of Exeter, funded by the Nuffield Foundation, concluded that the current requirement to apportion blame can “exacerbate unnecessary conflict with damaging consequences for children” and runs “contrary to the thrust of family law policy.”
A major catalyst for change was the much-publicised case of Owens v Owens, which sparked headlines such as “Woman trapped in a loveless marriage”. In 2018, the Supreme Court upheld the decision of the trial judge and the Court of Appeal, refusing a divorce to Mrs Owens based on her allegations of unreasonable behaviour, which Mr Owens contested. The court agreed that Mr Owens’ alleged behaviour towards his wife did not amount to behaviour so unreasonable that a reasonable person could not be expected to live with him. Expressing regret at not being able to grant Mrs Owens a divorce, the court urged parliament to act.
From 6th April 2022, either or both parties may apply to the court for an order dissolving the marriage on the ground that it has broken down irretrievably. Either or both spouses will sign a short statement confirming the marriage has broken down, which the court must accept as conclusive evidence of that fact and allow the divorce to proceed.
Limited challenges will remain, including arguments over jurisdiction and whether the marriage was valid in the first place. But, other than such technical arguments, contested divorces will disappear.
The Act, which also applies to civil partnerships, introduces some new terminology. The petition/petitioner becomes the “application”/“applicant”. The decree nisi, which is the first stage of divorce, becomes a “conditional order” and a decree absolute, the final stage, becomes a “final order”.
The new procedure includes a 20-week waiting time before the court can grant a conditional order.