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No-fault Divorce on its way to becoming law

This week marked a major step forward for the Divorce, Dissolution and Separation Bill 2019-21, which passed its Second Reading in the House of Commons.

Most, if not all, Family Law professionals are acutely aware that law reform is needed in order to reduce the animosity and conflict when issuing Divorce Proceedings. In November 2019, the Office National Statistics reported that in England & Wales ‘unreasonable behaviour’ was the most common reason for opposite-sex couples Divorcing in 2018, with 51.9% of wives and 36.8% of husbands Petitioning on this fact.

What this means in practice is that a Petitioner will have to ‘blame’ the other party and many are left with having to raise multiple examples of the other’s unreasonable behaviour to ensure the can obtain a swift Divorce. Unfortunately, a Petitioner would otherwise have to Divorce on the basis of adultery (which obviously is not always the case) or the parties may have to be separated for at least 2 years provided that they both agree to the Divorce. The delay clearly prevents couples from moving on with their lives.

The No-fault Divorce Bill will remove the current requirement to establish one of the five facts, so that either or both parties to a Marriage may apply for a Divorce solely on the ground that the “marriage has irretrievably broken down irretrievably” and a statement to that effect will just be needed. The Divorce process will take a minimum of 6 months to complete. Similar provisions will also apply to Civil Partnerships. In terms of the finer detail of the No-fault Divorce Bill, an individual will no longer be “Petitioning” for Divorce, but will “Apply” for a “Divorce Order”, and the “Decree Nisi” (confirmation that the marriage has irretrievably broken down) will be referred to a “Conditional Order” and the “Decree Absolute” (confirmation the marriage has ended) will be called “Order Final”.

Resolution (an association of family lawyers who seek to resolve family issues in a constructive way) has long campaigned for the enactment of a No-fault Divorce Bill. In a recent survey of Resolution members, “over 90% agree that No-fault Divorce should be available to separating couples”. The Law Society also supports legislation to introduce No-fault Divorce and comments that “the proposed changes should simplify current practices and reduce conflict between couples”.

Whilst the No-fault Divorce Bill has been described as the “Marriage-wrecker’s charter” and that it would be “deeply damaging” to the sanctity of Marriage, David Lammy (the Labour MP for Tottenham and recently appointed as the Secretary of State for Justice) welcomed the Bill and emphasised that it “offers a common-sense approach that continues to respect the institution of Marriage and Civil Partnerships, but avoids unnecessary antagonism and costs for people dealing with an often incredibly difficult time in their lives”.

It is not quite time to start waving our flags in celebration of the No-fault Divorce Bill receiving Royal Assent; it is currently at the Committee Stage and will then need to pass the Report Stage and Third Reading, and who knows whether the Covid-19 pandemic with impact on those stages, but it is certainly on its way to becoming law.

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