No-Fault Divorce Comes Into Force.
At 10am on the 6th April 2022, the biggest reform to divorce law came into force in the form of the Divorce, Dissolution and Separation Act 2020.
The new act aims to reduce conflict and allegations between parties, thus reducing the impact on children and families and bringing an end to the blame game in divorce proceedings.
This law has not only been a welcome change by Resolution, who campaigned tirelessly since 2015, but to the many children and domestic abuse charities who hope the new law will stop divorce from being used as another weapon.
History.
No-fault Divorce was something not to be heard of when the Matrimonial Causes Act was brought into force originally in 1857. The only way to get a divorce was in an open court for all of society to condemn. A man had to prove his wife’s adultery and a wife had to prove her husband of rape or incest. Due to the judgement, it was something not often brought into practice.
By July 1966, no-fault was being considered for the first time and in 1969 the Divorce Reform Act was enacted. It was later consolidated into the matrimonial Causes Act. The 1969 Act stated that the sole ground for divorce was the irretrievable breakdown of the marriage based on one or more of the following facts[1]:
The respondent has committed adultery
The respondent has behaved in such a way that the petitioner cannot reasonable be expected to live with them
The respondent has deserted the petitioner for a contentious period of a least two years
That the parties have lived apart for a continuous period of at least two years and the respondent consents to a decree being granted
Parties have lived apart for a continuous period of at least five years
Whilst the act seemed to work for a few, many were still pushing for the act to go further with no-fault divorces.
In 1988 the law commission looked at grounds for divorce and advised that fault should be removed and a reflection and consideration period should be added.
This commission was led by Professor Brenda Hoggett who has gone on to become one of the country’s best known Supreme Court Justices now known as Lady Brenda Hale.
The commission was praised by then Prime Minister Margret Thatcher. Upon her resignation one month later, John Major took on the project of getting it through parliament.
However, it was not without criticism with many stating those in favour were notwithstanding the values of marriage.
Then papers started turning on those at the forefront including Lady Hale. It was eventually given the green light but enacted into the Family Law Act 1996 due to the rules surrounding divorce with children. This was later repealed in 2014 due to its complex nature.
Enactment of New Legislation
Resolution started campaigning for change and for a no-fault divorce and in 2016 had a successful day lobbying in parliament.
They spent the next year reaching out to the media and in 2017 ‘the Times’ blasted their front page with the wording ‘No-Fault Divorce’ signalling a time of change and showing the media was finally getting on their side.
A report from the Nuffield foundation entitled ‘Finding fault? Divorce Law and Practice in England and Wales’ was released which showed the current fault-based system was ‘damaging, legally and intellectually dishonest’[2]
The report indicated that currently when allegations are made for the basis of the divorce most of the time no investigations into the allegation are made when the divorce is not contested.
The other fault with the current system is most of the time the reason for divorce is not as stated. Parties do not want to blame each other, but for not wanting to wait the two years before moving on with their lives, there is no other choice as the court’s powers can only be exercised on financial matters when there is a divorce.
In 2018 media coverage was drawn to the attention of the case of Tini Owens. Married 40 years and with two children Mrs Owens advised her marriage had broken down irretrievably and in 2015 left the matrimonial home and pursued a divorce against her husband. Mr Owens contested the divorce and the case ended up in the Supreme Court in 2018 in which Mrs Owens lost. It advised she would have to stay married until 2020 unless Mr Owens agreed to a divorce.
With the Media coverage of the case, alongside Resolution’s campaigning and the report on Finding Fault? It drew the attention of Parliament and in April 2019 then Justice Secretary David Gauke agreed to bring forward legislation.
This time the bill received almost no opposition and on the 25th June 2020, the bill received Royal Assent.
What is the New Legislation?
The new legislation puts the basic features of the divorce proceedings into as simple terms as possible and puts an end to the blame game.
Whilst the basis of divorce is still irretrievable breakdown of the marriage it is now evidenced by a simple statement.
This will be followed by 20 weeks of a conditional divorce order and then a further six weeks to a final order.
For the first time, couples will be able to make an application jointly.
This reduces animosity/conflict in the legal process, especially where there are children concerned.
It has the advantage of demonstrating a joint decision and limiting the risk of non-co-operation as there is no respondent.
However, joint applications also have their disadvantages:
A joint application may affect control over proceedings
A joint application may be unfair to a vulnerable party
A joint application may impact on domestic abuse cases or on the financial party.
Once a joint application has been made it can later be turned into a sole application if one of the parties decides it does not want to reply. However, if a sole application is made it cannot be made into a joint application at a later stage.
Other new features include removing the ability to contest the divorce. At the end of the 20-week conditional order period, the respondent can apply to delay the financial order for the court to consider finances.
Joint Applications
Applicants need to decide who will take the role of applicant one and applicant two. Applicant one fills in all the details and sends them to applicant two.
On the digital service, the form will be emailed to applicant two and on the paper-based service, applicant one can then post or email the form to applicant two.
For the digital service, applicant one will need to pay the fee of £593 at the time of application but can make arrangements between the parties as to how this will be paid.
On the paper form either applicant can include their details on the fee page.
For both services, both parties will need to include a signed statement of truth with their application.
Disputed Divorces:
You can no longer defend a divorce because the facts of divorce have gone but they can still be disputed on the following grounds:
Jurisdiction
The validity of the marriage or civil partnership
The marriage or civil partnership has already been legally terminated.
Language
The new legislation has also simplified the language used in the divorce proceedings.
Petition and Petitioner NOW CALLED Application and Applicant
Decree Nisi NOW CALLED Conditional Order
Decree Absolute NOW CALLED final Divorce order
Defended NOW CALLED Disputed Proceedings
Decree of Nullity NOW CALLED Nullity of Marriage order
Decree of Judicial Separation NOW CALLED Judicial Separation Order.
When can you get divorced?
To get divorced in England and Wales, the marriage must be legally recognised in the UK. This applies to Civil Partnerships as well.
The marriage must have lasted for over a year and the relationship has to have permanently broken down.
During the first year of marriage if the parties decide they no longer wish to be together they can apply for a separation order, or they may be able to annul the marriage.
Steps to be taken to get a divorce
In order to get a divorce, an application is made online for a divorce or dissolution. Civil partnerships applications are made on paper forms.
Copy of a D8 application form for Divorce or dissolution. (for a civil partnership)
The application must provide a statement of irretrievable breakdown of marriage but due to the removal of the fault basis, there is no required evidence of conduct or separation to be provided.
The applicant then ticks to confirm if they wish to apply for a financial order.
Unlike the old D8 form the new form contains useful guidance throughout.
Only one application can be made at a time. If for any reason the application is withdrawn or dismissed by the court, then the other party can submit an application.
The applicant must pay a fee of £593 for the application. Those on benefits or a low income may be able to apply for help.
Urgent cases:
20 weeks can be shortened in extreme circumstances. You make the application online; a legal advisor will consider the urgency and if a hearing is needed. This is the same for the 6-week final order period.
How will no-fault divorce shape the future?
No-fault divorce will undoubtedly change and shape the future of divorce.
With some divorces only taking 6 months from beginning to end it means couples and families can start to move on with their lives much quicker.
Domestic abusers will no longer have the upper hand using divorce as a coercive control in a relationship. Victims are no longer attached to their abusers for years unable to getaway.
Hopefully, it will mean more amicable splits where both parties have control and can make joint decisions and easier terminology so all can understand what is happening along the way. No stopping and starting as one tries to defend the allegations made.
Many of the features implemented into the new legislation were recommended by Lady Hale in her commission in 1988. 34 years later and it looks like it is finally the end of the blame game!
Written by: Victoria-Jayne Scholes
OULS News Editor
[1] https://www.legislation.gov.uk/ukpga/1969/55/pdfs/ukpga_19690055_en.pdf [2] https://www.nuffieldfoundation.org/sites/default/files/files/Finding_Fault_summary_report_v_FINAL(1).pdf
First published for legallypowered.co.uk
