The no-fault divorce: Removing the concept of fault

The no-fault divorce: Removing the concept of fault

Rishika Mair, Solicitor at Appleman Legal, shares her opinion on the Divorce, Dissolution and Separation Act 2020 (“the Act”), dubbed the biggest reform in divorce law in the last 50 years. Prior to this reform, parties seeking a divorce were required to convince a court that the marriage had irretrievably broken down.

To do so, they had to cite one of the five facts:

i)        unreasonable behaviour,

ii)        adultery,

iii)       desertion,

iv)       2 years’ separation with consent from the other party, and

v)       5 years’ separation without consent from the other party.

Some of the key reforms are:

  1. The introduction of no fault divorce means that couples can get divorced without one person needing to blame the other. When a couple decide to get divorced, one of the parties will have to provide a statement suggesting that the marriage has irretrievably broken down. There is no longer the need for the petitioner to satisfy one of the five factors above.
  2. The petitioner and the Respondent can make a joint application for a divorce.
  3. The language used has been simplified, for example:

a.    The decree Nisi (the second stage of the divorce) is now called the Conditional Order; and

b.    The Decree Absolute (the final stage) is called the Final Order.

  1. There is more time within the stages of the divorce, for example there is a cooling off period which is for 20 weeks. The law suggests that parties must wait, at the very least, 20 weeks between the initial application and making the conditional order. They must then wait, at least, another 6 weeks before making the final order. The aim of having such lengthy waiting periods is allow parties to reflect on their decision for a divorce and to give parties the opportunity to reconcile.
  2. Divorce proceedings can no longer be contested by the Defendant. Before the reform the Defendant had the power to defend the divorce proceedings and issue their own cross application.

Q:       Will this change the Divorce process at all?

Rishika says “ In my opinion the changes to Divorce Law removes any unnecessary conflict between couples. The new Law ends the need for couples that are separating to blame each other for the breakdown of their marriage, helping couples to focus on other practical issues such as matters surrounding their children and/or finances. It is still possible for parties to raise the other’s behaviour/ conduct when matters in relation to children and finances are being determined.

The new law also stops one partner from vindictively contesting the divorce. In my experience, I have seen couples contest a divorce petition which means the parties stay in an unhappy marriage.  This has been seen, in cases where there is domestic violence. For example domestic violence perpetrators would use their ability to challenge the old process and further harm the Applicant.

Prior to the reform a defendant could defend a divorce and/ or issue their own cross petition. This made the proceedings longer and it would often cause a lot of stress for individuals. It would also create additional legal costs. Under the new law, parties cannot contest to the divorce, making it a quicker and less stressful process.

The Act also introduces a timeframe of 20 weeks between the parties applying for the divorce to when parties can apply for a conditional order of divorce. The timeframe, of course, reflects on individual circumstances between the parties and is there to assist couples deal with any other issues such as children or finances. This is hoped to be much quicker than the previous Divorce Laws.

The new Law aims to allow couples, that are divorcing, to deal with contentious issues in a more amicable way and it is hoped that the element of hostility is removed from the divorce process.”

Impact on the LGBT+ and Gender Recognition Act 2004

However, the removal of these five facts is also significant in eradicating a discriminatory definition which has existed in the previous statute governing divorce law.

Section 1(6) of the Matrimonial Causes Act 1973 stated that “only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section”.

Whether the parties were in a same-sex relationship, or in a heterosexual relationship where adultery took place with someone of the same sex, this precluded them from citing adultery as the basis for the divorce. Whilst it could be referred to under the more general “unreasonable behaviour” fact, the limitation of the definition of adultery was discriminatory and antiquated.

The “no-fault divorce” reform could also positively affect married transgender people who apply for a gender recognition certificate in order to obtain legal recognition of their gender.

The Gender Recognition Act 2004 states that an application for a gender recognition certificate must include a statutory declaration from the applicant’s spouse, confirming that they consent to the marriage continuing after the issue of the certificate.

If the statutory declaration is not completed, only an interim certificate, rather than a full certificate, will be issued until the marriage or civil partnership has been brought to an end.

Does the new legislation address this issue of spousal consent by making it easier and quicker to get a no-fault divorce?

Although the new law makes it easier for couples to get divorced in a more amicable way.

Before same-sex marriages were introduced in England and Wales, it was necessary for married transgender people to end their marriages in order for the transgender person to gain legal gender recognition. This is no longer the case. The Law now states that when a married transgender person seeks gender recognition, their spouse must give permission.

The current legislation suggest that the spouse is only contesting to the continuation of their marriage, however, in practice they have the power to consent or not to their partner’s gender being recognised.

If the spouse’s permission is withheld then the transgender person is blocked from having their gender legally recognised. The new divorce law assist in obtaining the divorce in a quicker and easier way for individuals in such scenarios.

However, it is slightly unclear how the divorce reforms will have an impact on this as nullity proceedings are still an option. The process of this is that if an interim transgender certificate has been issued and nullity proceedings are brought, within six months of the certificate, the marriage is voidable and as a result it is annulled instead. Therefore, the ease or speed of the new divorce process can be less relevant.