Is “No Fault Divorce” now a reality?
Many people will recall the Supreme Court Judgment of Owens -v- Owens delivered in July 2018. That Judgment concerned Tini Owens, who had been married to her husband for 35 years and who had appealed against both an initial Judgment in the High Court and a Court of Appeal Judgment denying her a Certificate of Entitlement to a Decree of Divorce.
The current law, which dates from a 1973 statute, requires a party to show that their marriage or partnership has broken down irretrievably before they can obtain a decree of divorce or an order dissolving their civil partnership. In order to demonstrate that it has broken down irretrievably, a party has to establish evidentially one of four or five facts. Those facts include either establishing that one party has committed adultery in the exclusive case of divorce or establishing that a party has behaved unreasonably, that the parties have been separated for two years and the other party consents, that one party has deserted the other or that the parties have been separated for five years irrespective of whether the other party consents.
The effect of the Supreme Court Judgment on Mrs Owens has been that she is required to wait until she and her husband have been separated for five years before she can obtain a decree of divorce.
Whilst the facts of Owens -v- Owens are specific to that case, the effect of the Judgment led to the Government announcing via a Press release on 9 April this year that it was planning to bring forth legislation to amend the 1973 Act to enable parties to proceed on the basis of “no fault” divorces.
Since then the Divorce, Dissolution and Separation Bill 2019 has now been brought before Parliament.
In broad terms, the effect of the Bill is to enable either one party or both parties jointly to apply for a divorce without having to establish either of the five facts referred to above. In particular, the Bill envisages that neither party will have to make allegations of behaviour about the other nor to establish allegations of adultery on the part of the other in order to obtain a decree of divorce. All that will be required, under the Bill, is for a statement to be filed at the beginning of the proceedings confirming that the marriage has broken down irretrievably. After a period of 20 weeks, either one party or both parties can apply to progress the divorce without further detailed scrutiny by the Court.
The Bill envisages that the process will apply equally to the dissolution of civil partnerships as to divorce and that the two stage process of a conditional and final order will still apply.
The Law Society has endorsed the Bill whilst suggesting one or two procedural improvements.
Although it remains unclear at this stage whether the Bill will complete its passage through Parliament, it is clear that Government and Parliament see the introduction of “no fault” divorce as a priority.
Neil Graham, a Partner at Grayfords, comments as follows: “This is a welcome development for parties wishing to obtain a divorce or a dissolution of their civil partnership. The Bill envisages that it will be easier for parties to establish that their relationship has broken down in law and will enable them to obtain a dissolution of that relationship in law without the need to make allegations about their spouse or partner. This can only be of assistance to parties in facilitating the process of divorce itself enabling people to concentrate on trying to resolve the financial aspects or any disagreements in relation to children through mediation or through litigation as a last resort”.
At Grayfords we are specialists in all aspects arising from relationship breakdown including the financial implications and any issues relating to children. Please do not hesitate to contact us if we can be of any assistance.
This article was written by Neil Graham.