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No fault divorce: the biggest reform to divorce in 50 years

View profile for Wendy Armstrong
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Divorce laws in England and Wales are finally set to change after the Divorce, Dissolution and Separation Bill passed its third and final reading in the House of Commons on 17th June 2020. The bill will reform the traditional fault-based system by implementing a new ‘faultless’ regime which will come into force from autumn 2021. 

Under the current rules, couples must prove that their relationship has irretrievably broken down evidenced by at least one of five facts (adultery, unreasonable behaviour, desertion, 2 years separation by consent or 5 years separation with or without consent).

This means that, under current laws, couples wishing to pursue divorce immediately must do so on the basis of one party’s ‘fault’ (adultery or unreasonable behaviour), the alternative being that they wait a period of at least 2 years before making an application.

The new legislation will change the status quo in favour of a less contentious approach, whilst maintaining the concept of irretrievable breakdown. The obligation to prove one of the five facts will be removed and instead couples will simply be required to set out the reasons why they wish to pursue a divorce.

The new legislation will make way for joint applications, providing couples with a way to end their marriage on mutually agreeable terms.  

There will be a minimum timeframe of six months between an initial divorce application being made and any Decree Absolute (the formal ending of the marriage) being granted. At present, there is no strict timescale in place except that Decree Absolute cannot not be granted before a 6 week and 1 day period following the Court having pronounced Decree Nisi (when the Court is satisfied that a person is entitled to a divorce). 

The 6-month period required by new legislation is intended to give couples the opportunity to fully consider their decision to divorce, ensuring no rash decisions are made.

The abolishment of fault-based divorce is not only a move towards respecting the personal autonomy of couples but can also be viewed to be in the best interests of the family unit, particularly children. 

The current system of apportioning ‘blame’ has notoriously caused strain between couples attempting to maintain amicable relations during initial separation. It is hoped that this new regime will relieve some of these strains.

If you would like any more information in relation to this article or you have a family issue that you would like to discuss, please get in touch with BakerLaw’s family team to book an initial half hour no obligation consultation. 

Please note that this information is for guidance only and should not be regarded as a substitute for taking full legal advice on specific facts and circumstances.
 

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