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An update on the 'blame game'. Can I get a 'no fault' divorce?

View profile for Laura Hallahan
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You may have seen the recent news surrounding “no fault” divorce over the last few years following the Supreme Court’s decision in Owens v Owens, and the subsequent Divorce, Dissolution and Separation Bill which made its way through Parliament and achieved Royal Assent in June of this year. As family lawyers we continue to field enquiries from clients eager to take advantage of this, free of the ‘blame game’ that has permeated what is often the first step in a separation.

The Bill was hailed by family law solicitors as bringing divorce law into the 21st century. Couples will no longer have to cite one of five facts in order to support the sole ground for divorce that the marriage has broken down irretrievably. The most common fact currently relied upon by divorcing couples requires the petitioning party to cite examples of their spouse’s ‘unreasonable behaviour’ and explain why this has led them to the view that their marriage has reached its end. This often generates conflict and animosity between the parties, as they are forced to focus on what went wrong in the past, rather than looking towards the future.

The new Divorce, Dissolution and Separation Act 2020 removes the requirement for a party to the marriage to establish fault, and parties can either apply individually or jointly to the court to dissolve the marriage by simply accompanying the application with a statement that the marriage has broken down irretrievably, which the court will take as conclusive evidence to make a divorce order.

The language surrounding divorce will be modernised. ‘Decree Nisi’ and ‘Decree Absolute’, will be replaced with first a ‘conditional order’, then 6 weeks later, a ‘final order’. However, there will be a minimum period of 20 weeks from the point proceedings are started until a conditional order can be made, which appears to place an arbitrary six month ‘reflection’ period on couples when they have already made the difficult decision to divorce.

Currently, the courts are operating with considerable delays in processing divorce applications, although the recently established HMCTS online portal is proving to be more efficient than applications to the court made on paper. It will be interesting to see the practical impact of this 20-week delay when the legislation comes into force, given couples can expect to wait a similar amount of time, if not longer, under the current legislation to reach Decree Absolute. Either way, this quashes the suggestion that there is such thing as a “quickie divorce” in England and Wales.

It has therefore come as a disappointment to family lawyers and separating couples that the Lord Chancellor has indicated the Act will not come into force until Autumn 2021 as “time needs to be allowed for careful implementation”. Divorcing couples are therefore stuck with the old regime for at least another year. In the meantime, Burgess Mee continues to assist clients with preparing divorce petitions drafted to minimise any potential conflict, and encourage an amicable approach between the parties.

If you are considering your options in relation to divorce or separation, our team of specialist family lawyers can assist. Do not hesitate to contact us at mail@burgessmee.com or on 0203 824 9950.

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