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‘No fault divorce’ – finally
May 31, 2019
The Government’s announcement in April 2019 of an intention to revise the 50-year-old legalities surrounding divorce proceedings has been met with a sense of cautious optimism.
The proposed reforms – most notably involving the concept of ‘no-fault divorce’ – have been promised for many years. With Parliamentary time largely devoted to matters surrounding Brexit, no timeline has yet been set for the introduction of the proposed legislation but family mediators hope that the planned legislation will be prioritised as promised.
Currently a couple seeking divorce have to prove that their marriage has broken down, giving one or more of the following reasons: adultery, unreasonable behaviour, desertion, two years’ separation (if both parties agree to the divorce) or five years’ separation (when no agreement is required). Petitioning for divorce on the basis of the first three, fault-based categories is often painful and acrimonious, further polarising the separating couple immediately before they attempt to reach agreement in mediation. An enforced delay before divorce creates frustration in an often difficult financial landscape. None of these situations are conducive to successful mediation.
Instead, in simplified terms, the proposed process would be this: either party would give notice that their marriage has irretrievably broken down and they intend to seek a divorce and, 26 weeks later, either party can apply for a final divorce. A minimum period of 20 weeks will apply from petition stage to decree nisa. It is easy to see some difficulties with these proposals (for example, it would be problematic if a final divorce was achieved before the parties reached an agreement in relation to their finances), but the broad principle is sound.
No fault divorce will help parties to reach resolution with far less rancour, expense and delay. For separated couples involved in mediation, particularly where children are involved, this offers an opportunity for ex-partners to focus on constructive relationships as co-parents. These changes would also apply to the dissolution of civil partnerships. Whether or not the re-introduction of legal aid for court proceedings for divorcing couples will accompany the new legislation remains to be seen.
Overall, family mediators have widely welcomed the proposals which will bring benefit to those who begin proceedings to formally separate.
