After at least three decades of campaigning for it, and one false-start, on the 6th of April a new system of no-fault divorce will finally be introduced in England and Wales.
Since the early 1990s Resolution, the association of family lawyers, has been campaigning to replace the ‘blame game’ of the current (old) divorce system with a modern, no-fault, system of divorce.
In 1996 parliament actually passed an Act intended to introduce no-fault divorce, but the Act was so unworkable that it was eventually dropped.
Now at last no-fault divorce is being introduced, in what is the biggest change to divorce laws in this country for more than fifty years.
Doing away with blame
There is only one ground for divorce under the present (old) system, and this will not change under the new system: that the marriage has broken down irretrievably.
But under the old system it was necessary to prove to the court that the marriage had broken down irretrievably, before the court would grant the divorce.
This meant that, unless the parties had been separated for at least two years, the party seeking a divorce would have to blame the other party for the breakdown of the marriage, by showing that they had committed adultery, or that they had ‘behaved unreasonably’.
Needless to say, being blamed entirely for the breakdown of the marriage, and having such allegations made publicly against them, could cause considerable resentment from the other party. This could in turn make it more difficult for the parties to agree important matters, such as arrangements for children and finances.
All of this is to change. Under no-fault divorce it will no longer be necessary to prove that the marriage has broken down irretrievably. Allegations of adultery and unreasonable behaviour will be a thing of the past.
This, it is hoped, will do away with an unnecessary cause of possible animosity between the parties, thereby making it more likely that they will be able to agree arrangements for children and finances between themselves.
That is not all. Under the new system it will no longer be possible to defend divorce proceedings. Defended divorce proceedings, although rare, could drag out the divorce and add enormously to the cost.
In some cases the defence would succeed, meaning that the court would refuse to grant the divorce, thereby condemning the parties to remain in an unhappy marriage, possibly until they had been separated for five years.
How will it work?
The new system will be quite simple, involving three steps.
The first step is that one or both of the parties start the proceedings by making an application to the court for a divorce order, dissolving the marriage.
The application must be accompanied by a statement by the applicant(s) to the effect that the marriage has broken down irretrievably. The court must take the statement to be conclusive evidence that the marriage has broken down irretrievably.
The second step comes after twenty weeks have elapsed since the start of the proceedings. This ‘period for reflection’ is intended to give the applicant(s) time to be sure that they do indeed want a divorce.
After the period has elapsed the applicant(s) may confirm to the court that they wish the application to continue. Upon receipt of such confirmation the court will make a conditional divorce order, the equivalent of the decree nisi under the old system.
The third and final step is that after six weeks have elapsed from the making of the conditional order the party or parties in whose favour the conditional order was made may give notice to the court that they wish the conditional order to be made final.
If it is satisfied that there is no reason not to do so, the court will then make the conditional order final, concluding the divorce.