To the dismay of those awaiting the implementation of the Divorce, Dissolution and Separation Act 2020, the Government has just revealed that the long-awaited law which plans to introduce a “no fault” divorce in England and Wales has now been delayed.
The Act, which received Royal Assent on 25 June 2020, was due to come into force in Autumn 2021. However, in a written response to a parliamentary question, Chris Philp MP expressed that the deadline needed to be pushed back. It has now been confirmed that the Ministry of Justice are working towards a deadline of 6 April 2022.
Under the current law, in order for a spouse (petitioner) to immediately initiate the process of filing for divorce, they must make an accusation about the other spouse’s behaviour, or in other words, blame them for something.
Parties must be able to establish at least one of the following five facts, which prove that the marriage has broken down and cannot be saved, or has “broken down irretrievably”.
The five facts a petitioner can rely on are:
- Adultery: one spouse has committed adultery and the other finds it intolerable to live with them.
- Unreasonable behaviour: one spouse has behaved in such a way that the other cannot reasonably be expected to continue to live with them. This could include physical violence, verbal abuse, alcohol or substance abuse and more.
- Desertion: one spouse has deserted the other for at least 2 years before applying for divorce.
- Separated for 2 years: both spouses agree to divorce (with written consent), and there must be proof of separation for 2 years.
- Separated for 5 years: one spouse can apply for a divorce where a couple have been separated for 5 years, even if one spouse disagrees to divorce the other.
The adultery and unreasonable behaviour facts are referred to as “blame-based” facts and initiate immediate divorce proceedings, which can become messy and lengthy as the other party may contest the accusations made against them.
Under the present law, the only way to obtain a divorce without blame is to wait for at least two years (if both parties consent to the divorce) or five years (if one party does not consent). For some, this can lead to a lengthy process and can cause many inconveniences as you must supply the court with proof of separation.
So, what does the “no fault” divorce mean?
The new law, which is set to be introduced in April 2022, will change a number of key elements. Below is a breakdown of how the new law will work.
- The end of “blame-based” facts:
Under the new law, spouses will be able to make a statement that the marriage has broken down irretrievably without having to rely on a “blame-based” fact or have to wait at least 2 years before applying.
Unlike the current law, this statement is the only evidence needed to show that the marriage has broken down and the Court must then make a Divorce Order. This is a significant change that will allow couples to separate amicably without apportioning blame.
2. Joint application for divorce:
Currently, only one spouse needs to issue the divorce proceedings against the other. However, under the new law couples will be able to make the application jointly.
3. Waiting time:
In order to allow for a “reflection period”, a minimum timeframe of 20 weeks between application and the final Divorce Order has been introduced. This is in response to concerns that the new law would make divorce a much easier option for couples rather than trying to save their marriage. This timeframe will enable couples to consider alternative routes such as mediation first before committing to a divorce.
If, after the 20 weeks have passed, spouses still wish to continue with the divorce, they must confirm this to the Court when applying for the Conditional Order (currently known as the Decree Absolute). The Conditional Order will not be finalised until six weeks have passed, meaning that the total time to get a divorce will be 26 weeks.
In exceptional circumstances, the Court will be able to make allowances to shorten the couple’s waiting time.
Additionally, further delays may be caused where spouses are still resolving the financial aspect of divorce.
4. Can you contest the divorce under the new laws?
As the new law does not need the petitioner to place blame onto the other party, there is no need for the party to contest. So, under the new “no fault” divorce system this option will be removed.
5. New terminology:
At present, petitioners must obtain a decree nisi first before applying for the decree absolute. The decree nisi is the certification from the Court that the grounds for divorce have been proved. There is then a 6-week and one day statutory wait before the petitioner can apply for the decree absolute.
Under the new law, these will change. What was the “decree nisi” will be known as a “Conditional Divorce Order” and the decree absolute will be the “Final Divorce Order”.
When will the changes apply?
Although the Act received Royal Assent in June 2020, it is now anticipated that it will become law in April 2022. This is to ensure that guidance notes, procedures, court forms and court IT systems are sufficiently updated and can accommodate the changes made. It will also allow sufficient time for the digital side of the service to be developed and tested.
Author: Anisa Kebbati
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 Ministry of Justice. “Divorce, Dissolution and Separation Act 2020.” UK Parliament: Written Questions, Answers and Statements, © UK Parliament 2021, 25 May 2021, questions-statements.parliament.uk/written-questions/detail/2021-05-25/7278.