No Blame Divorce - The Divorce, Dissolution and Separation Act 2020
NO BLAME DIVORCE NEW LEGISLATION
Currently divorce can only be obtained on the basis of an “irretrievable breakdown” based on one of the following five grounds:
2. Unreasonable Behaviour
3. 2 years separation with the consent of the other non-issuing party
4. 5 years separation without the consent of the non-issuing party
5. Desertion of one party for 2 years.
Why did it come about?
Therefore, for those wishing to divorce on an amicable and no blame basis, for example, if the marriage has just come to the end of the road and the parties have simply “grown apart”, the only options available to them are 3 and 4 above. For those wishing to divorce now and sort out the financial issues to obtain a financial order, they cannot do so and are forced to consider issuing a divorce on the grounds of one party’s “unreasonable behaviour”. This can cause unnecessary bad feelings which both parties wish to avoid.
How did it come about?
For years Practitioners and Resolution have been calling for a change in legislation to allow couples to divorce on a “no blame” basis. This is where there is no need to show or prove wrongdoing of one of the parties in order to secure a divorce.
It is not a new concept, in 1757 Frederick the Great of Prussian introduced by edict a ground of “serious and continued hostility for divorce”. In December 1917 the new Russian revolutionaries considered marriage a “bourgeois” institution and so removed divorce from the jurisdiction of the Russian Orthodox Church and allowed divorce on application; this was the first modern Country to take that Step; in 1969 California allowed no fault divorce; in 1975 Australia followed suit; our jurisdiction is almost there in 2021.
As far as the UK is concerned, a very well-known case of “Owens v Owens” brought a huge amount of attention to the need for the legislation to be changed following Mrs Owens failure to secure a divorce based on “unreasonable behaviour”. Mr Owens defended the proceedings on the basis that the marriage had not irretrievably broken down; it was just bad; it was never an emotionally intense marriage and that both parties had learned to “rub along”.
Justice Secretary David Gauke launched a consultation proposing removing “fault” and the right of spouses to contest a divorce. He was quoted as saying that the current divorce laws were “out of touch with modern life”. “We think that the blame game that currently exists helps nobody. It creates unnecessary antagonism and anxiety at an already trying time for couples”
The Government published the response to this consultation on 9th April 2019 and on the same day committed to new legislation introducing no fault divorce.
The new “Divorce, Dissolution and Separation Act 2020” received Royal Assent on 25th June 2020.
So, what’s different?
- The whole process is much simpler
- It only has nine sections as opposed to the current legislation which makes the whole thing much simpler
- The sole ground of irretrievable breakdown of the marriage remains
- There is no longer any requirement to establish one of the 5 grounds to prove the irretrievable breakdown of the marriage
- The new legislation allows joint applications where the couple both agree that the relationship has irretrievably broken down
- Sole applicants will still be able to apply on their own however, if their partner does not agree
- Most importantly if one party does not agree, this legislation removes the ability of the non-issuing spouse to contest a divorce, dissolution or separation if application is made by one party only
- The Court will take the statement of the joint parties or one party to be conclusive evidence that the marriage has irretrievably broken down and make a divorce order
Difference in procedure
- From the date the proceedings started the new legislation introduces a new minimum period of 20 weeks before issuing a “Conditional Order” (currently the Decree Nisi). This is effectively a “cooling off” period to allow for the parties to be certain this is what they want and provide sufficient time to consider the financial aspects of the separation
- The same period of 6 weeks between the Conditional Order and Final Divorce Order (currently Decree Absolute) remains
Lord Chancellor Robert Buckland told MPs that the Act’s reforms will not come into force on Royal Assent because “time needs to be allowed for careful implementation…we are working towards an indicative timetable of implementation in Autumn 2021”. This, however, has been delayed due primarily to COVID 19 and is expected to now be implemented in Spring 2022.
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