The Divorce, Dissolution and Separation Act 2020 signifies the most important reform to divorce law in the past 50 years. Under this legislation the long awaited "No Fault" divorce has been implemented and is due to become law on 6 April 2022 in England and Wales.
The Current Legislation
Under the current legislation couples can only apply for a divorce if they can successfully prove that their marriage has broken down irretrievably due one of the five grounds that must be legally established on the breakdown of a marriage. These five grounds are 1) Adultery, 2) Unreasonable behaviour, 3) Desertion, 4) Two years separation with consent and 5) Five years separation without consent. Essentially, there must be an element of blame being put on one spouse from the other before a divorce can be granted from the Court if there has been no period of separation. The current legislation unfortunately lacks any provision for when a couple both wish to end their marriage on a completely amicable and joint basis.
At present, an application for a divorce can also not be made jointly even if both parties agree that divorce proceedings should commence. This means that one party must divorce the other based on one of the five grounds regardless of it being agreed between both parties that a divorce is in both of their best interests.
It is of no surprise that this element of fault in divorce proceedings has the predictable effect of causing unnecessary conflict amongst divorcing couples and emotional harm to any children involved. The current legislation simply adds further stress, toxicity, and harm to an already traumatic time in a divorcing couple's life.
The Divorce, Dissolution and Separation Act 2020
The new legislation has introduced several necessary changes to the law on divorce by reforming the divorce process and legal requirements.
Abolition of the 'blame game'
The new Act aims to reduce the potential conflict amongst divorcing couples by removing the requirement to rely on one of the five grounds in order to establish to the court that the marriage has broken down irretrievably. Now, a couple no longer must find fault or be separated in order to obtain a divorce, instead one spouse or a couple jointly can simply make a statement of irretrievable breakdown of the marriage and the court will be required to grant the divorce order. The statement of irretrievable breakdown will be accepted as conclusive evidence that the marriage has broken down irretrievably, eliminating the need for one spouse to 'blame' and for the other spouse to be 'blamed'.
Joint application
From 6 April 2022, couples will be able to jointly make an application for a divorce. This is a crucial change which will allow couples who have decided to separate to do so on a completely amicable and equal basis.
No longer possible to contest
The new legislation will no longer allow for a divorce application to be contested, except for in very limited grounds. The grounds are 1) where the court has no jurisdiction to hear the divorce proceeding, 2) where fraud and irregularities are apparent within procedural compliance and 3) where the marriage/civil partnership lacks validity.
A no-fault divorce means that one spouse or both may decide to end the divorce without having to rely on or establish any grounds as a reasoning. Thus, it is to be agreed that no longer allowing a spouse to contest the divorce is a reasonable change, as without any allegation of blame involved there is no fair reason to contest a divorce where one spouse simply may no longer believe It is in their best interest to continue in the marriage.
The new legislation also applies equally to civil partnerships.
No-fault divorce is a long-awaited piece of legislation that represents a landmark change to English divorce law and is a change that is highly welcomed by many family legal professionals and law firms, including us here at Clapham & Collinge. Neale Grearson, Partner and Head of the firm's Family Department has said "the change was long overdue" and that this is the "most radical change in divorce law for nearly 50 years". The current law on divorce is simply outdated, having been passed into statute in 1973, it is clear that times and attitudes to marriage and divorce has changed tremendously since then and a change in the law was needed to reflect this.
If you are considering starting a divorce application or are already in the process of making one, our family department here at Clapham & Collinge are here to provide you with advice and support for any queries you may have regarding the new legislation.
If you would like to seek advice on any family law issues, please contact our dedicated Client Relations Team on 01603 693500 or email us using the 'Make an enquiry' form on our website.
At Clapham & Collinge we have a dedicated team of experts who are able to provide you with all of the necessary information, support and legal advice on family law. Click here for more information on the family law services we offer.
*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.
