Currently in the UK there is only one legal ground for divorce – the ‘irretrievable breakdown’ of a marriage – and couples must cite at least one of several ‘legitimate’ reasons why they want to split.
However, the ‘Divorce, Dissolution and Separation Bill’, or ‘No-fault Divorce Bill’, is expected to be implemented in Autumn 2021 and will see the divorce process finally be brought into the 21st century, allowing couples to resolve matters in a dignified and amicable way.
What is the current divorce law?
Under existing UK divorce law, anyone seeking a divorce must have been married for at least a year and be able to provide evidence of one or more of five ‘facts’ to establish the ‘irretrievable breakdown’ of the marriage. Three of these ‘facts’ are based on ‘fault’, and the other two are instead based on a period of separation.
The ‘fault’ facts are: ‘behaviour’, ‘adultery’ and ‘desertion’, and the separation facts are ‘two years’ separation with consent’ and ‘five years’ separation without consent’.
‘Behaviour’ is defined as when a husband or wife has behaved in such a way that their spouse cannot reasonably be expected to live with them, and can include physical violence, verbal abuse – such as insults and threats – drunkenness or drug-taking, and refusing to pay towards shared living expenses.
For a spouse to use adultery as a reason, their husband or wife must have had sexual intercourse with someone else. However, adultery cannot be given as a reason if the couple have lived together for more than six months after the spouse found out about it. Adultery also cannot be used for same sex couples however, a person within a same sex relationship can cite behaviour and rely on an inappropriate relationship with another man / woman.
For desertion, a husband or wife must have left the marital home for at least two years before their spouse can apply for divorce. A divorce can also be applied for if a couple has been separated for at least two years and both parties agree to it, as long as the agreement is made in writing by the applicant’s husband or wife.
If a couple has been separated for five years or more, a spouse can begin divorce proceedings even if their husband or wife disagrees with it.
Divorce Petitions can be defended but in most cases, defending a divorce petition is unlikely to be successful if the Petition has been drafted properly. Divorces are rarely denied. They can in certain cases be refused if one person claims they will suffer great hardship, like financial difficulties, as a result.
What the No-fault Divorce Bill will mean
One of the key criticisms of current divorce law that the No-fault Divorce Bill seeks to redress is the ‘blame game’ that arises when one spouse has to make accusations about the other’s conduct, or otherwise face years of separation, before the divorce can be granted.
The proposed bill will remove this altogether by allowing one spouse – or the couple jointly – to provide a statement of irretrievable breakdown.
What’s more, it will prevent one partner from contesting a divorce sought by their spouse, which in some cases has enabled domestic abusers to tighten coercive control over their victims.
Another new measure brought by the law is that there will need to be a minimum period of 20 weeks from the start of proceedings to confirmation to the court that a conditional order of divorce can be made.
This will give couples a greater opportunity to agree practical arrangements for the future where reconciliation is not possible and divorce is deemed inevitable.
The six-week period between the Conditional Order and when the Final Order can be made will be retained from existing law where the same period was required from Decree Nisi to Decree Absolute.
The changes brought by the bill have been hailed by the Government as ‘the biggest shake-up of divorce laws in half a century’ and will not only minimise the impact that allegations have on couples, but on children also.
Should people wait for No-fault Divorce to come into effect?
If a person is ready to divorce now, it could be in their best interest simply to go through with it, given most divorces are passed without issue because both parties are in agreement that the relationship has broken down irretrievably.
However, there are certain circumstances in which people may prefer to wait for No-fault Divorce to be enacted, for example if a spouse has an acceptable reason to divorce – such as adultery – but their partner has told them that they will challenge the application and take them to court.
Another circumstance where it might be best to wait is if a spouse has been separated for five years but knows their partner will challenge the divorce on the basis that it will cause them financial hardship. In this case, rather than going to court to argue their case, they might find it easier, cheaper and less stressful to hold off for another year until No-fault Divorce comes into effect.
While detractors of the No-fault Divorce Bill argue that it will encourage more people to apply for a divorce, many legal experts believe this is simply not the case, and it will instead be a breakthrough for those who want to end their marriage without getting caught up in a ‘blame game’.
How Blaser Mills Law can help?
If you are unsure about whether to apply for a divorce now or wait for No-fault Divorce, please contact one of our experienced family lawyers, who will be able to assess your unique circumstances and help you reach the best outcome.
For more information on the contents of this article, please contact Lucinda Holliday on +44 (0)1494 478603 or via email at ljmh@blasermills.co.uk