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What is No-Fault Divorce?

The Law Society recently proposed change within the law in respect of divorce. The current law has come under a great deal of criticism since the landmark ruling of Owens V Owens [2018], where Mrs Owens was denied a divorce on the basis that her husband successfully defended the application, which was based on his unreasonable behaviour. Mrs Owens will need to remain married to Mr Owens until 2021 i.e. 5 years after separation until she can obtain a divorce without her husband’s consent.  

The Supreme Court concluded that a change was required within the current law. Over the past month the Law Society has proposed that a no-fault divorce should be introduced. The following will consider their proposals and the likely timescale before it becomes law.

No-Fault Divorce: The current law

Under the current law in England and Wales there is one ground for divorce, namely the irretrievable breakdown of the marriage, thereby an individual must rely upon one of five facts, namely adultery, unreasonable behaviour, desertion, two year separation with consent of the other spouse and five year separation. The five facts are divided into two categories: fault based and non-fault based facts.

Adultery and unreasonable behaviour are considered to be fault based facts, and they are the most relied upon facts within divorce proceedings. Two year separation with consent and five year separation are considered to be no fault based facts.

The main criticism of the current law is that if you wish to obtain a divorce based on the no-fault facts, you would need to rely on being separated from your spouse for a minimum period of two years, and your spouse has to consent. Whereas if your spouse has committed adultery, or behaved unreasonably towards you, you could apply for a divorce sooner. Equally, when alleging a spouse’s adultery or unreasonable behaviour this can cause a negative impact on proceedings and cause hostility and unnecessary animosity, which can be avoided if couples rely on the no-fault based facts

Many clients that we see inform us that the breakdown of their marriage is not solely down to the  particular conduct of either party, but rather it is a mutual decision by both parties to go their separate ways and divorce. Unfortunately, the current law does not accommodate the change of views in society. The no-fault based facts cannot be relied upon until couples have been separated for a minimum period of two years, meaning that many couples will be in a state of uncertainty until the two periods has elapsed.

No Fault Divorce under the proposed new law

The Law Society has recommended that the current law on divorce is updated to reflect the needs of society. They propose that the majority of the law remain, however, they recommend that a no fault fact is introduced meaning couples do not need to wait a minimum of two years to rely on a no-fault fact.

The alternative is that both parties can state that they wish to divorce and depart from the unnecessary animosity that is caused with fault based facts.

The Law Society has stated that couples will find the process generally quicker than the system is now. As there will be little conflict, and less to argue over, the speeder the process should be. The Law Society has estimated proceedings should take no longer than 6 months from beginning to end, compared to the estimated 12 months it would take currently.  

When will the change to No Fault Divorce law take effect?

While the Law Society has recommended proposals for a change, couples will still need to wait a little while until it becomes law. Parliament has stated that it will be discussed within the House of Commons but have failed to provide a timescale. It is unknown how long couples will need to wait until the proposals become law, or whether the new proposals will receive approval from both the House of Commons or the House of Lords but surely it can be said that this is a step in the right direction for a more harmonious divorce for many couples.

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