No Fault Divorce - 2020 - Boodle Hatfield

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11 Jul 2019

No Fault Divorce

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At present, the only ground for divorce is that the marriage has irretrievably broken down.

This has to be proved by one of five facts: adultery, behaviour, desertion, two years’ separation with consent or five years’ separation without consent.

The first three facts are fault-based. Therefore, if you want a consensual divorce currently without seeking to apportion any blame, you will be required to wait for a minimum of two years (or five years if your spouse will not agree). Most divorces currently proceed on a fault basis probably because the parties want to move on with their lives as soon as possible once the marriage is over. In addition, the divorce needs to start before the couple can ask the Court to resolve the financial aspects of their separation.

Following several recent high profile cases, and a Ministry of Justice consultation, the ‘Divorce, Dissolution and Separation Bill’ was introduced into the House of Commons on 13 June 2019 and is currently proceeding through Parliament. The Bill aims to make divorce less acrimonious by completely removing fault from the process. Whilst irretrievable breakdown remains the sole ground for divorce, it replaces the five facts with a single statement by one or both parties that the marriage is over. There will be no option to defend the divorce and a conditional divorce order will be granted after a minimum 20-week period followed by a final order six weeks later.

Whilst the response to the Bill has been largely positive, some are concerned that it might increase the divorce rate by making it an easier and more accessible process, although the true aim of the Bill is not to simplify divorce but to soften it. Some people also feel entitled to set out the reasons why they believe their marriage has ended and, for them, that is an important part of the divorce process.

Nevertheless, the Bill is likely to be passed as it has wide cross-party support but it is not yet clear when the new rules will come into effect.

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