The current divorce law requires one party to the marriage (namely the Petitioning party, i.e. the person who is going to initiate the divorce proceedings) to prove that the marriage has irretrievably broken down by establishing one of five facts. These facts are as follows:-
- The other party’s adultery;
- The other party’s unreasonable behaviour;
- Two years’ separation plus the other party’s consent;
- Two years’ desertion; or
- Five years’ separation.
The first two are therefore fault based whilst the other three are all based on periods of separation. Both can pose issues for parties who wish to separate amicably.
The first is based on the responding party’s (the Respondent) adultery. This, however, requires the Respondent’s admission which could, of course, present problems. The Petitioner could be confident that the Respondent has committed adultery, but the Respondent may not admit to this or alternatively may simply not want the divorce to be based on this or dispute that this was the reason for the breakdown of the marriage.
The second is the Respondent’s ‘unreasonable behaviour’. This can include a whole host of examples from no shared social life to controlling behaviour and so on. The Petitioner will generally need to be able to cite at least five examples of the Respondent’s unreasonable behaviour so as to ensure that the Court agrees that this amounts to the irretrievable breakdown of the marriage. The issue, however, is that some divorcing couples simply have fallen out of love and wish to go their separate ways and so allegations of unreasonable behaviour may not be applicable.
Facts 3-5 are based on periods of separation and, again, can create problems for separating couples. There are couples who wish to deal with matters as amicably as possible and in cases whereby there has been a period of separation this isn’t an issue but, in the cases, where separation has occurred recently the only options available for couples wishing to divorce now would be the other party’s adultery or unreasonable behaviour. Quite understandably, this causes concerns for couples if they do not want to unnecessarily raise the temperature and want to deal with matters as amicably as possible.
Whilst some may say that in these instances couples should simply wait until two years post separation to divorce, this may not be advisable as the Court cannot make a binding order dealing with the parties finances until divorce proceedings have been initiated and the Decree Nisi stage of the process (the mid-point) has been reached.
Resolution, a network of family lawyers and other professionals committed to promoting a constructive, non-confrontational approach to family law matters, therefore took on board the concerns raised in relation to the existing divorce process and campaigned for a change in the divorce law. This campaigning ultimately helped lead to the Divorce Dissolution and Separation Bill which gained Royal Assent on 26 June 2020.
So, what does no fault divorce mean for divorcing couples? As from 6 April 2022 the petitioning party will no longer have to prove one of the five facts. Instead, the idea is that one party can initiate a divorce application and then there will be a minimum period of twenty weeks after the filing of the divorce application before that party can apply for a Conditional Order (which will replace the current “Decree Nisi” stage of the divorce proceedings). There will then be a further six-week period before the petitioning party can apply for what will be termed under the new Act as the “Final Order” (currently known as the “Decree Absolute”) which will formally dissolve the marriage.
The idea with the new system is that there will be no element of fault which has to be proved under the current divorce regime unless one of the separation facts is used.
The new regime is an exciting time for divorce lawyers around the country and it is anticipated that it will be gladly welcomed by separating couples.
If you would like to know more about no-fault divorce or if you have any further queries relating to a separation, then please do not hesitate to contact me or another member of the Family Team.
