No fault divorce law passes through parliament
In arguably the most important development in family law in this country in the last thirty years, the Government’s Divorce, Dissolution and Separation Bill, which will bring in a system of no-fault divorce, has passed through both houses of parliament. It now just needs the Royal Assent, a formality, to become law.
The Bill marks a complete change in the way divorce law will operate, finally getting rid of the idea of attaching blame to one party for the breakdown of the marriage, and bringing our system into line with the no-fault divorce systems of many other western countries.
It is hoped that doing away with the need to attribute blame (at least if the parties have not been separated for two years) will reduce animosity, and thereby make it more likely that couples will be able to agree arrangements for children and finances.
What does it all mean?
The most important change is that it will no longer be necessary to give a reason for the breakdown of the marriage, such as that the other party has committed adultery or behaved unreasonably. One or both of the parties will simply file with the court a statement saying that the marriage has irretrievably broken down, and that is the only ‘proof’ of irretrievable breakdown that the court requires.
It will also no longer be possible to defend the divorce, even if the other party does not believe that the marriage has broken down irretrievably.
This does not necessarily mean that divorce will be quicker under the new system. Indeed, it could be slower.
Under the present system it is possible, at least in theory, to get a divorce within as little as three months.
However, under the new system there will be a minimum period of twenty weeks between the start of the proceedings and the making of a conditional divorce order (the equivalent of the present decree nisi). There will then, as now, be a further period of six weeks before the final divorce order (the equivalent of the present decree absolute).
Accordingly, under the new system divorces will take a minimum of six months.
The Bill is expected to receive the Royal Assent in the coming days. However, that does not mean that the new law is about to come into force.
In fact, the Lord Chancellor Robert Buckland QC has told MPs that the Bill will not come into force on Royal Assent “because time needs to be allowed for careful implementation”. At this stage, he said, the Government is working towards a timetable of implementation in autumn 2021.
Clearly, therefore, the new law is unlikely to affect most people who are currently considering issuing divorce proceedings. However, as we get closer to implementation then no doubt many couples will wait, rather than have to go through the current procedure of attributing blame, if they have not been separated for two years.
Will it change how courts deal with disputes over children or finances?
There are a lot of misconceptions about the new law, and what it will change. In particular, some believe that it will change the law on sorting out arrangements for children, or that it will make it easier, especially for wives, to make financial claims.
This is not true. The new law is only going to change the way in which the divorce itself is dealt with. The law in relation to children and financial settlements on divorce will not be changed.
However, as mentioned above, it is hoped that doing away with the need to attribute blame for the marriage breakdown will reduce unnecessary animosity between the parties, and thereby make it more likely that they will be able to agree arrangements for children and finances. Obviously, it is in everyone’s interests, especially the children, if these matters can be agreed, whether directly or through mediation.