Why this change in law is so significant
The Divorce, Dissolution and Separation Act 2020 was passed in June 2022 and came into force in England and Wales on 6th April 2022. At the core of the new legislation was the introduction of the concept of “no fault divorce”. This represents the biggest significant change to divorce law in the last 50 years and came following many years of campaigning by various professionals and organisations.
Why did the law need to change?
Previously, a party seeking a divorce had to plead one of the five grounds (which included allegations of fault such as the other party’s adultery or unreasonable behaviour). The new law now allows couples to divorce without assigning fault thereby making the process of divorce for separating couples less painful, acrimonious and costly.
It also removes the possibility of contesting a divorce save for on the grounds of jurisdiction. Contested divorces were previously a painful and expensive process open to abuse by one party to the marriage.
The Supreme Court of Owens v Owens (2018) highlighted the need for reform in this area. In that case, Wife’s divorce petition was successfully defended by the Husband despite it being clear to all that the marriage was over. The court expressed reluctance in this rule with Lady Hale describing it as “very troubling”. Lord Wilson further commented that ‘Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances’.
What has changed?
Instead of needing to prove that one party to a relationship is at fault, there is now no requirement to assign fault. This means that a party can leave the marriage simply by declaring that it has irretrievably broken down.
- The ability to defend or contest a divorce (save for on limited jurisdictional grounds) has been removed.
- There is also now the possibility of filing a joint application which was not open to parties before even when they were still cordial and on good terms.
- The new law also updates the old archaic terminology to make the process more user friendly. Decree Nisi’ is replaced by a ‘Conditional Order’. ‘Decree Absolute’ is now a ‘Final Order’ and ‘Petitioner’ (the person submitting the divorce application) will be the ‘applicant’.
What has not changed?
The changes are limited to the divorce process only. No fault divorces will not change the way the court views the division of matrimonial assets or the arrangements for children.
The new process
- One party, or both parties, will give notice that the marriage has broken down irretrievably
- There is then a minimum period of 20 weeks to allow couples a period of “meaningful reflection”.
- After 20 weeks, the applicant (or couple applicants) who gave notice confirm they wish to proceed with the divorce
- The court can then make a Conditional Order
- Following a further 6 weeks, the court can make the Final Order.
We recognise that divorce and relationship breakdown will always be a painful process.
However, not every marriage breaks down as a result of the fault or wrong doing of one party. Often parties drift apart or they both play a part in the breakdown of the marriage. The new law removes the need to cite blame on the other which will hopefully set a more amicable tone for the parties to resolve the financial and children related issues.
Our lawyers are committed where ever possible to promoting a dignified and constructive approach that considers the needs of your whole family. If you are considering a divorce, it is important to get specialist legal advice as early as possible to discuss the support and options available to you and your family that will need to allow you to handle the divorce in the best way possible.