Playing the blame game is never fun. It is, however, the reality for divorcing couples. Finally, this is set to change in April 2022 when England and Wales introduce “no-fault” divorce. As part of this process, the divorce system will undergo a 21st-century refresh to make it easier to navigate.
Grounds for Divorce
Currently, a divorcing couple must be able to show that their marriage has broken down irretrievably. This can be proven in one (or more) of five specific ways. These are a separation of two or five years (uncontested and contested), desertion, adultery or unreasonable behaviour.
Of these options, unreasonable behaviour is by far the most common. If a divorce is uncontested it can, effectively, mean whatever the couple wants it to mean. Judges are highly unlikely to refuse to grant a divorce if both parties are in agreement that it is the best way forward for them.
On the other hand, if a divorce is contested, then a judge can refuse to grant a divorce on any grounds other than a five-year separation or proven desertion. Even adultery is not cut and dried. For example, if a person initially forgives the adultery, they may not then be able to use it as grounds for divorce.
As of April 2022, applicants will simply have to advise the court of the irretrievable breakdown of the relationship. This will be “self-certified” and an applicant’s word will be sufficient. There will be no need to go into details of how the marriage came to fail.
The process of being granted a divorce has been significantly overhauled. Currently, one party has to petition for divorce. The other party may or may not contest it. If they do, the matter will be put to a court hearing where a divorce may or may not be granted.
Probably the most highly-publicized example of this was Owens v Owens. This ended up in the Supreme court in 2018. Although the court was sympathetic to Tina Owens’ wish to divorce her husband Hugh, they had to rule that the law (at the time) did not allow her to do so.
Tina Owens has since obtained her divorce (in 2020). If, however, the same case were to be heard from April 2022, the procedure would be entirely different. She would simply apply for a divorce and would be immediately granted a conditional order of divorce (currently a Decree Nisi).
There would then be a 20-week “reflection period”. If she did not change her mind during this period, she would automatically be granted a final order of divorce (currently a decree absolute). Her husband would not be able to contest the divorce. If, however, he agreed to it, he could make a joint application for divorce with her.
The Advantages of No-Fault Divorce
There is hope that stopping couples from being forced to assign blame for the failure of the marriage could lead to easier divorce proceedings for everyone. Even the most amicable “conscious uncoupling” can be an emotionally-charged experience. Where there is acrimony, it can make a tense situation a whole lot worse.
Additionally, the fact that it will cease to be possible to contest a divorce may encourage both halves of the splitting couple to focus on finding a path forward rather than trying to save a doomed marriage. In particular, it might encourage them to work with their ex-partner on a financial settlement and/or child-related issues.
For example, if these can be decided through mediation and/or arbitration then a splitting couple could effectively arrange their separation entirely privately. Technically any settlement would still need to go to a court for final approval. It would, however, be extremely unusual for a judge to refuse to sign off on an agreement.
Lovedays Solicitors, based in Matlock are specialists in personal and business legal services. Their team of solicitors can provide support and guidance through a range of family law matters including divorce, finances, domestic abuse and more.