The UK Government in April 2019 announced that divorce law in England and Wales would be changing, with the introduction of “No-Fault Divorce”. A bill introducing the same in England and Wales had been backed by MPs in 2020. It passed its first hurdle in the Commons by 231 votes to 16 against, following a debate.
No-Fault divorce is due to come into effect in England and Wales w.e.f. April 6, 2022. This means that couples will be able to get divorced without one person needing to lay blame on the other. This change will also apply to civil partnership dissolution.
Many legal professionals feel the current divorce laws are out of date and the changes seek to end the blame game that adds stress and pain onto thousands of couples each year.
Current Grounds for Divorce
Under the current divorce law, the only way to get a divorce without a statutory delay is if one spouse not only initiates proceedings but alleges fault on behalf of the other. This fault can be established with the court by using one of three reasons for divorce:
- Adultery: If you can prove adultery, you simply need to say you find it intolerable to live together
- Unreasonable Behaviour: In this case, the court has to agree the behaviour makes it unreasonable to expect you to continue living together. Courts have imposed a high threshold, often requiring serious, specific examples
- Desertion: This can make for particularly complicated legal proceedings. While there’s no statutory delay to the process itself, you can’t start until two years after the desertion
If you can’t or won’t allege one of these faults, you can only get divorced once you have been separated for two-years if both spouses agree to the divorce, or five-years if one spouse refuses.
The new law will retain the Irretrievable Breakdown of a Marriage as the sole ground for divorce.
How Has Irretrievable Breakdown in Marriage Been Defined?
The new law will replace the requirement to specify one of the five grounds for divorce with a ‘statement of irretrievable breakdown’ – thereby eliminating the requirement to administer any blame. This is the biggest difference between a fault and no-fault divorce.
The basis of the new law remains the same: Divorce is only possible when a marriage has irretrievably broken down. However, the definition of an irretrievable breakdown has expanded through two key changes.
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The first change is that divorce proceedings no longer have to be initiated by one partner alone. Instead, a couple can make a joint application While that may seem like a technical measure, supporters of the new law argue that it removes an in-built imbalance that undermines attempts to split amicably
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The second change is that the current list of five permissible ways to prove the breakdown (adultery, unreasonable behaviour, desertion, agreement after two years’ separation, one party request after five years’ separation) have been replaced by a single mechanism
Now all that’s required is for at least one spouse to provide a legal statement to say the marriage has broken down irretrievably. This statement counts as conclusive evidence and cannot be contested.
The law does also allow for a joint statement, again increasing the opportunities for a mutual split to avoid artificial imbalances. If you have been separated less than 2-years, you will need to either cite adultery or unreasonable behaviour as the reason for the breakdown of your marriage. Parties will still need to be married for at least 1 year before they can apply for a divorce.
The relevant laws on the dissolution of a civil partnership will also be updated. The idea is that broadly the same system and principles, complete with the no-fault declaration of irretrievable breakdown, will apply to both divorce and dissolution.
Parliamentarians also took the opportunity to modernise and simplify some key legal terms in the divorce process;
- The “petitioner” will now be the “applicant”.
- The “decree nisi” will now be called a conditional order”
- And finally, the “decree absolute” will be called a “final order.”
That’s the latest step in a 20-year program of changes to make the language of civil courts more accessible.
Timelines For No-Fault Divorce
There will remain a two stage process of a divorce but there will be an new notice period of 26-weeks, based on a minimum time frame of 20 weeks from petition to decree nisi (the first order in the divorce proceedings) and then 6-weeks from decree nisi to decree absolute (the second and final order in the divorce proceedings).
The new law has also changed the name of the decrees, essentially removing the old school legal jargon! The first order of the divorce will be known as a ‘conditional order’ and the second will be referred to as a ‘final order’.
Proposed Reform Of Financial Rules
Baroness Deech in the House of Lords has been championing the idea of reform. Her Divorce (Financial Provision) Bill, proposes the following:
- Making the starting point for division of assets on divorce a 50/50 split of the net value of the matrimonial assets acquired during the marriage. Courts could then consider a number of factors, including:
- Any agreement between the parties about ownership of specific property;
- Dissipation of assets
- The needs of children
- Assets acquired before the marriage would be excluded
- Inheritances during the marriage would be ring-fenced unless the needs of one party justified including them in any division
- Maintenance would only be payable for five years
- Statutory recognition of pre and post nuptial agreements
There are many criticisms of the proposed reforms, not least the idea that there could be a ‘one size fits all’ approach to finances when every family’s financial foundations are different. Some also believe the five-year maintenance limit will unfairly penalise a spouse who may have given up a lucrative career to care for children.
Background:
The move to change divorce laws was partly prompted by the case of Tini Owens – a woman from Worcestershire who wanted to divorce her husband of 40-years. However, because her husband contested the split, the law stated she could only obtain a divorce by living apart from him for five-years.
Mrs Owens said she was “desperately unhappy” in the marriage but Mr Owens disagreed and said the couple still had a “few years” to enjoy.
In 2018, her case was heard and rejected by Supreme Court justices – one of whom said, they had ruled against Mrs Owens with “no enthusiasm whatsoever” and that it was up to Parliament to change the law.
Opinions In Favour Of No-Fault Divorce
A Ministry of Justice spokesman said,
We will always uphold the institution of marriage. But when divorce cannot be avoided, the law must not create conflict between couples that so often harms the children involved.
Our reforms remove the needless ‘blame game’, while ensuring there is a minimum six-month time frame to allow for reflection and the opportunity to turn back.
Commenting on the forthcoming adoption of no-fault divorce in England and Wales, Aidan Jones OBE, Chief Executive at relationship support charity, Relate said:
This much-needed change to the law is good news for divorcing couples and particularly for any children involved. The outdated fault-based divorce system led parting couples to apportion blame, often resulting in increased animosity and making it harder for ex-partners to develop positive relationships as co-parents.
Former President of the Supreme Court, Baroness Hale, has been an advocate for the introduction of no fault divorce into UK law. She believes that being able to say the relationship has simply failed, without holding either person accountable, could ease some of the stress and pain that couples often endure during separation.
She also believes that this process would make it easier for couples to settle the terms of their divorce, without getting caught up in long-winded, acrimonious legal battles in court.
Arguments Against No-Fault Divorce
On the other side of the coin, some people have been opposed to the introduction of no fault divorce into UK law. Some believe that making the divorce process easier could be damaging to the sanctity of marriage. They argue that couples may not think carefully enough before entering into a marriage if they feel that they can easily divorce if it doesn’t work out.
Some cited other potential risks associated with making divorce more straight-forward and more accessible, feeling that this could lead to more couples opting for divorce as soon as difficulties arise instead of taking the time to try to save their relationship.
If someone has been subjected to unreasonable behaviour in a marriage or their spouse has committed adultery, it was argued that the offending spouse should not have the option of getting a divorce without being held to account.
Other campaigners suggested that the current process for divorce can cause the relationship between the divorcing couple to deteriorate even further, as one person dredges up and documents evidence of the other’s behaviour.
UK Government Confirmed Change
The arguments for and against no-fault divorce came to a head in 2018, when the UK Government confirmed that divorce law would be reformed in England and Wales. They acknowledged that current divorce laws are out of touch with modern life and proposed changes to remove blame from the divorce process.
MDO Take:
India too debated this law in 2010-2013, however, it failed miserably because we wanted to ape the financial settlements from the west. Some women rights activist also wanted to include 50% of inherited property as settlement.
We must understand the laws in the west speak about “Spousal Maintenance” and not “Maintenance to Wife”, where most couples live in nuclear properties jointly owned by them. We cannot apply 50-50 blanket formula to Indian couples, especially where large part of the country still practices a joint family system.
India desperately needs Irretrievable Breakdown in Marriage Law, as we have couples languishing in courts for years/decades, due to other spouse holding on to ego fight after separation. However, while bringing in such a law, we must adopt a standard formula depending on:
- Duration in Marriage
- Whether couple has children
- Whether wife is working or capable to re-start working within 1-2 years of separation
- Assets in the name of wife created during marriage
- Rehabilitative Alimony
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In the US, the land of “no fault divorce”, about 80% of divorce cases are filed by women. The reason is not “incompatibility”, but rather to get the house, the kids, the maintenance, the child support WITHOUT having to live with the man, who becomes just a slave. DANGER ALERT.
False accusations will not end because of “no-fault divorce”. Instead women will continue to make false allegations about everything between heaven and earth, including false rape, false child rape and sexual, false child abuse, false dowry harassment.
No-fault-divorce is in fact “automatically-man’s-fault” divorce. No real evidence will be needed. Court proceedings will be made secret “to protect the privacy of the children” (because mom will be making (FALSE) accusations of child sexual abuse to get child custody AND the family house. No real evidence needed, No judge dares to stand up and say no.
Don’t be fools, Indian men. No-fault divorce means exactly the above. It happens every day in the US, in SECRET (non-public) court proceedings in separate “family courts” where there are no protections for men.
In the US, the land of “no fault divorce”, about 80% of divorce cases
are filed by women. The reason is not “incompatibility”, but rather to
get the house, the kids, the maintenance, the child support WITHOUT
having to live with the man, who becomes just a slave. DANGER ALERT.
False accusations will not end because of “no-fault divorce”. Instead
women will continue to make false allegations about everything between
heaven and earth, including false rape, false child rape and sexual,
false child abuse, false dowry harassment. No-fault-divorce is in fact
“automatically-man’s-fault” divorce. No real evidence will be needed.
Family Court proceedings will be made secret “to protect the privacy of the children” (because mom will be making (FALSE) accusations of child sexual abuse to get child custody AND the family house). No real evidence needed. No judge dares to stand up and say no. Don’t be fools, Indian men. No-fault divorce means exactly the above. It happens every day in the US, in SECRET (non-public) court proceedings in separate “family courts” where there are no protections for men.