Current divorce process:
Divorce law in England and Wales is governed by The Matrimonial Clauses Act 1973. In order to be granted a divorce in England or Wales, the court needs to be persuaded that the marriage has broken down irretrievably, to a point where it cannot be saved.
There are currently 5 legally recognised facts that the petitioner can rely upon as evidence to support their petition for a divorce.
The first is adultery, which can be relied upon if your spouse, during your marriage, has a consensual sexual relationship or encounter with someone else.
The second and most common factor is unreasonable behaviour. The respondent must have acted in such a way that the spouse cannot be expected to live with them. Case law has suggested that the appropriate test in deciding this, is whether a “right-thinking person” would come to the same conclusion. It is important to note that if you rely on this ground for your divorce but still continue to cohabit with your spouse, for a cumulative period of more than 6 months, the Court may refuse to allow the petition. The six month time frame may be disregarded if you still live together in the same household but live separate lives.
The third factor is desertion – where one party deserts the other for two years or more, without explanation.
The fourth is two years separation with consent but to rely on this factor, both parties must have agreed to the divorce.
The fifth and final reason is 5 years separation, and no consent is required.
It is important to note that if the petitioner is relying on adultery or unreasonable behaviour, they must elicit examples of their spouse’s behaviour during the course of their marriage and present this to the court. The judge will then decide whether this behaviour has resulted in the marriage irretrievably breaking down. Additionally, those two factors do not require a waiting period of two years and can be applied for after only one year of marriage, but no sooner.
How will divorce law change:
The Divorce, Dissolution and Separation Act 2020 will allow married couples to divorce without assigning blame. The Act provides for the biggest reform of divorce law in fifty years and aims to reduce conflict between couples legally ending a marriage or civil partnership.
The introduction of this legislation is to help “end the blame game” and prevent the exacerbation of family conflict, as quoted by Justice Secretary, David Gauke. The bill first came onto the political agenda in 2015 so that couples can be granted a divorce purely on the basis that their marriage has irretrievably broken down without the need to lay blame on one person.
This new no-fault divorce was originally supposed to be implemented in Autumn 2021 but has been delayed until Spring 2022. Under this new system, couples will be able to get divorced solely on the basis that the marriage has broken down, without needing to cite one of the 5 reasons for divorce, which will all be removed.
Differences between the new and current law:
- The current divorce process is a fault-based system, and one of the 5 reasons for divorce must be relied upon. Whereas in the new law, the 5 reasons will be removed as there is no requirement for blame.
- In current laws, only one party is required to issue divorce proceedings, whereas, with the new law, both parties must apply jointly.
- On average, a divorce (where both parties agree) takes at least 6 months to complete. With the introduction of the new legislation, divorce will be a quicker process with a 20 week time frame between the application and divorce becoming finalised.
- Under the current divorce law, the spouse can contest the petitioner’s divorce application. However, this option will be removed under the new divorce system.
- Although there are evidently many advantages to the new no-fault divorce system, many believe that by making divorce more accessible and quicker, it will damage the sanctity of marriage. This is because applicants may opt for this rather than try to first make their marriage work.
Author: Moghda Qadery
Phone: 020 3865 1535
Email: mq@london-family-solicitor.co.uk