No fault divorce set to come in to force

09/04/2019
Author: Amanda Connor

Divorce laws in England and Wales are set to undergo the biggest shake up of the last 50 years.

No fault divorces which allow couples to split without the need to place blame are set to be given the go ahead by parliament.

It’s claimed that current rules cause unnecessary animosity and additional stress because the only way divorce proceedings can be started straight away is to cite adultery or unreasonable behaviour by one party against the other.  

The new no fault approach enables couples to state that the marriage has broken down irretrievably. It will also prevent one partner from refusing a divorce if the other party wants one.  

The proposals follow the well documented case of Tini Owens from Worcestershire. Mrs Owens claims she is unhappy in her marriage and wants a divorce from her husband of 40 years. Her husband, however, has refused to agree to it – a view that has been upheld by the Supreme Court. She now has to remain married until 2020.

Critics of the move have argued that no fault divorces will enable people to ‘divorce on demand’ but this has been dismissed by Justice Secretary, David Gauke who said the changes would help put an end the "blame game".

Under the new rules, couples will be able to apply for a divorce jointly. There will be a minimum time frame of six months from petition stage to the decree absolute (the legal document that ends a marriage) in order for couples to reflect on their decision and provide the opportunity to stop proceedings if they have a change of heart. Finally, before the divorce is granted, the applicant will be required to reaffirm their decision to divorce. This is in contrast to the current situation where divorces can take as little as three to six months in cases where allegations of adultery or unreasonable behaviour are petitioned.

Amanda Connor, a partner in Russell & Russell’s family law department, said: “This is a huge change for the matrimonial legal system. Divorce is always an enormously emotional and stressful period for anyone and the current fault based process does little to alleviate it.

“More importantly, however, is the strain it can put on children. The impact of ongoing conflict between their parents, both during and after divorce proceedings, can put untold amounts of pressure on a child.

“Ironically, it also contradicts the wider elements of family law which aims to resolve issues in a non-confrontational way. Using blame and placing fault, that only serves to create feelings of hostility and bitterness, at the centre of the legal process to end a relationship is in direct opposition to how the family justice system tries to achieve amicable outcomes, especially where it concerns children.” 

The intention to make no fault divorce legal follows a 12-week public consultation which showed widespread support for it. Although no time frame to introduce the new law has been given, Mr Gauke has stated that it will be as soon as possible, "when parliamentary time allows".

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