Whilst Mr. Philip MP described the delay as unfortunate, he pointed to the importance of ensuring that procedural rules were rigorously tested in order for the Bill to be deliverable by 6th April 2022. This means that practitioners and couples will have to wait a little longer before the Government delivers a ‘no-fault’ model of divorce.
As such, it is an opportune moment to reflect on reforms contained in the 2020 Bill and the impact they will have on divorcing couples and practitioners.
This blog post is not intended to provide an exhaustive analysis of current divorce rules. If you require a more detailed introduction to obtaining a divorce under the current law, then see a previous blog post at https://www.petersmay.com/divorce-process-explained.
Under the current law, the only ground for divorce is that the marriage has broken down irretrievably. In order to obtain a divorce, a party to the marriage must evidence irretrievable breakdown with reference to one of the five ‘facts’: Adultery, unreasonable behaviour, desertion, 2 years separation with consent or 5 years separation without consent.
Therefore, in order to obtain a divorce under current rules, without waiting for 2/5 years of separation, the petitioner must point to some aspect of conduct and, as such, attribute blame for the relationship’s breakdown. Although rare, some respondents will choose to challenge such allegations thereby drawing out the divorce process and creating further conflict.
It was in this light that the Law Society argued the current regime encourages a ‘blame game’ in the event of separation before concluding that the current statutory regime does not do all it could to minimize conflict in divorce proceedings. For further information on the Law society’s position on no fault divorce see https://www.lawsociety.org.uk/en/topics/family-and-children/no-fault-divorce.
In the Divorce, Dissolution and Separation Bill 2020, the Government has pledged to introduce what is commonly termed a ‘no-fault’ model of divorce. The key differences between this model and the current system are:
Whilst irretrievable breakdown will remain the sole ground for divorce, the new legislation removes the requirement to establish this via reference to one of the five facts. Instead, under the new statutory regime, the fact that one party has petitioned for divorce will be sufficient to establish that the relationship has irretrievably broken down. As such, the petitioner will not need to make any allegations pertaining to the behaviour of the other party.
Given that the 5 facts have been removed from the divorce process, a Respondent can no longer challenge a divorce petition on the basis that they disagree with individual allegations of behaviour. Under the new regime, if a divorce petition is issued, this is sufficient to establish irretrievable breakdown and, as such, cannot be challenged by the Respondent.
In order to foster the collaborative ethos at the heart of the Act, the new statutory framework will introduce the option couples to issue joint applications for divorce. This will reduce the extent to which divorce appears ‘adversarial’ and would give rise to ‘joint-petitioners’ who collaborate in order to reduce the element of conflict inherent in relationship-breakdown. It is hoped that minimizing conflict at this initial stage will serve to expediate subsequent negotiations surrounding any financial or child-related applications.
In the consultation phase, various third parties commented on the complex nature of the terminology involved in the current divorce process. As such, decree nisi and decree absolute will now be termed ‘conditional’ and ‘final’ orders respectively. Although not substantively changing the law, this is indicative of the 2020 Act attempting to simplify the divorce process and is designed to help couples understand the two composite stages therein.
Following actualization of these proposals, a petitioner will no longer have to evidence their partner’s conduct in order to establish that the relationship has irretrievably broken down. Whether this will have an impact on rates of divorce remains to be seen. However, it is an inescapable conclusion that obtaining a divorce will become a more straightforward process than that under the current statutory framework.
In addition, the new divorce regime will dramatically reduce opportunities for conflict in the initial petition stage. The new framework prevents a Respondent from contesting a divorce petition and removes any potential conflict surrounding allegations of conduct giving rise to one of the five facts. With removal of the facts, the new law shifts away from a ‘blame-game’ approach and allows couples to avoid re-living marital experiences in an effort to satisfy the vague legal threshold of irretrievable breakdown. This further prevents petitioners from potentially exaggerating certain elements of conduct in order to satisfy irretrievable breakdown. This was a problem identified by numerous contributors to the Law Commission report.
Whilst the government has indicated April 2022 as the ‘target date’ for actualization of these reform proposals, there is no guarantee that this target will be met. Indeed, Chris Philips MP, in his recent written response to Parliamentary Questions, highlighted the complex nature of implementing the reform proposals and indicated that the Government would not rush into doing so. As such, waiting to divorce under any new regime may result in unnecessary delay. This may, in turn, have an impact on any cooperative relationship enjoyed between a separating couple.
Instead, it is suggested that couples should attempt to adopt the cooperative ethos of the 2020 Bill and seek to separate under the current system in a manner that minimises conflict. This applies to both the initial divorce application and subsequent financial applications made by either party. Whilst some couples may choose to wait for the ‘no-fault’ framework to materialize, this could give rise to a protracted delay and so any such decision should be carefully considered by both parties.
To conclude, it is clear that the new framework seeks to simplify the divorce procedure and remove the potential for conflict. Nevertheless, whilst the process will be simplified, it is still important to seek legal advice before applying for a divorce. We now must wait for the government to implement measures in the 2020 Act, purportedly in April 2022, and wait for guidance relating to how practitioners should amend their practices to reflect the aims and purposes of the Act.