This means that no fault divorces will finally be an option available to divorcing couples from Autumn 2021.

What is the Current Law?

You can get divorced in England and Wales if you meet all of the following criteria:

  1. You've been married for over a year (at the time the divorce petition is sent to the court)
  2. Your relationship has permanently broken down
  3. Your marriage is legally recognised in the UK
  4. The UK courts have jurisdiction to deal with your divorce, based on residence and domicile

To demonstrate that the relationship has broken down, you will need to demonstrate at least one of the following reasons:

  1. Your spouse has committed adultery, although this only applies to relations with the opposite sex
  2. Unreasonable behaviour
  3. Desertion
  4. Separated for at least 2 years and your spouse consents to the divorce
  5. Separated for at least 5 years

The Concerns

A relationship breakdown is considered one of the most difficult things a person can go through in their life. Even if the parties mutually agree that the relationship cannot continue any longer, it will still have an impact on both of their lives. The concerns were that the current divorce process was outdated and it was making separation more difficult and acrimonious for couples than it needed to be.

This is because, under the current divorce process, the parties must choose to either live separately and wait 2 years before divorcing (or 5 years if one party does not consent). Otherwise one of the parties must blame the other by providing the court with examples of the other parties' unreasonable behaviour or adultery.

The process of essentially blaming one party for the relationship ending is considered by many as unnecessary, as it only leads to greater animosity and hostility between the parties. This then creates further difficulties when the parties are seeking to agree on how the matrimonial assets are to be divided or how childcare should be shared.

Reformists argued that if two adults decide they want a divorce, they should be able to do so without waiting two years or apportioning blame. In addition, they said that if one party does not agree to the divorce, it is not fair for the other party to be stuck in a marriage they do not wish to be in for 5 years.

What Does the Future Hold?

The Divorce, Dissolution and Separation Act 2020 will modernise the divorce laws and alleviated some of these problems.
The new law will mean that:

  1. Blame - the parties will not have to rely on one of the 5 facts mentioned above in order to get divorced. It will be enough to simply state that the relationship has broken down and some couples will be able to make a joint application for divorce if they wish, thereby reducing animosity.
  2. Objections - it will not be possible to contest the decision to divorce, unless it is on the basis of legal validity, jurisdiction, fraud, coercion or procedure.
  3. Timing - there will be a minimum time period of 20 weeks from the date of the petition to Conditional Divorce Order (currently known as Decree Nisi) and a further period of 6 weeks before applying for the Final Divorce Order (currently known as Decree Absolute). This increases the minimum time period required for a divorce, however it reflects the reality that most divorces are not finalised within 6 months due to ongoing discussions about finances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.