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New divorce law which comes into effect on 6 April 2022 means that divorcing couples will no longer have to blame one another for the breakdown of their marriage. It will also apply to civil partnership dissolution.

Under the current divorce law in England and Wales, the only way to get a Divorce without having a period of separation of at least 2 years is to allege some fault of the other. This fault must be attributed to that person’s adultery, desertion, or behaviour, regardless of whether a couple has made a mutual decision to separate, writes David Hodgson, a Partner in our Family & Divorce team.

The Divorce, Dissolution and Separation Act represents the biggest shake-up of divorce laws in half a century and aims to reduce conflict and the impact that allegations of blame can have on a couple and in particular children.

The new law will remove this ‘blame game’ by allowing one spouse – or the couple jointly – to make a statement of irretrievable breakdown.

Justice Secretary & Lord Chancellor Rt Hon Robert Buckland QC MP said, “The institution of marriage will always be vitally important, but we must never allow a situation where our laws exacerbate conflict and harm a child’s upbringing.

“Our reforms will stop divorcing couples having to make unnecessary allegations against one another and instead help them focus on separating amicably.

“By sparing individuals the need to play the blame game, we are stripping out the needless antagonism this creates so families can better move on with their lives.

When the new law was being passed by parliament, as quoted on the government’s press release, Aidan Jones, Chief Executive at relationships charity Relate said, “We’re pleased to see this important bill being reintroduced to Parliament today and hope for the sake of countless families that it is passed. Evidence tells us that parental conflict is damaging to children’s outcomes in life, yet the current fault-based system leads divorcing partners to apportion blame.

“The proposed changes will encourage a positive start to the new relationship divorcing couples must form as co-parents. Divorce isn’t a decision people tend to take lightly but the introduction of a minimum timeframe will provide an opportunity for couples to reflect and seek vital support such as counselling and mediation.

The Act will bring divorce law in line with the government’s approach to family justice – avoiding confrontation wherever possible and reducing its damaging effect on children.

The main changes introduced by the Divorce, Dissolution and Separation Act are:

  • To replace the current requirement to evidence either a conduct or separation ‘fact’ with the provision of a statement of irretrievable breakdown of the marriage
  • To remove the possibility of contesting the decision to divorce, as a statement will be conclusive evidence that the marriage has irretrievably broken down.
  • To Introduce a new minimum period of 20 weeks from the start of proceedings to confirmation to the court that a conditional order of divorce may be made, allowing greater opportunity for couples to agree practical arrangements for the future where reconciliation is not possible, and divorce is inevitable.

Current divorce law requires people seeking divorce to give evidence of one or more of five facts to establish the irretrievable breakdown of the marriage; 3 are based on ‘fault’ and 2 are based instead on a period of separation.

The 5 facts are behaviour, adultery, desertion, 2 years’ separation (if the other spouse consents to the divorce) and 5 years’ separation (otherwise).

According to the Ministry of Justice data out of every five divorce petitions, close to three rely on conduct facts and two on separation facts. The behaviour fact accounted for nearly half of all petitions, 46.4%.

Although the ability to contest a divorce is rarely used (in less than 2% of cases), it has in the past allowed domestic abusers to exercise further coercive control over their victim. The new law removes this possibility, but all divorce applications could still be challenged on the bases of jurisdiction, the legal validity of the marriage, fraud or coercion and procedural compliance.

The current law does not require any minimum period of time to elapse before granting a conditional order of divorce but in reality, people are unlikely to see any practical difference as it often takes around 20 weeks from initiating the divorce for the court to make a conditional order.

The two-stage process to obtaining a divorce will be maintained. The court will make a preliminary decree of divorce called a conditional order of divorce (now called a decree nisi) and will be able to make final decree of divorce six weeks and a day later. It is only the later decree, now called a decree absolute which dissolves a marriage.

Although there must be a minimum period between the 2 decrees, unless special dispensation is given, it is generally advisable not to apply for the final decree until financial matters are resolved. Therefore, the period to the final decree is much more varied, as some parties take a long time to make financial arrangements before they apply for the final decree.

As is the case now, the court will not automatically make a final decree of divorce but will require the applicant to continue to affirm their decision to seek a divorce before the final decree is granted.

Parallel changes will be made to the law governing the dissolution of a civil partnership which mirrors the legal process for obtaining a divorce. The new legislation will also not change other areas of matrimonial law such as financial provision which are governed by a separate procedure.

The removal of blame in a divorce can only be a good thing. Forcing couples to play the blame game was never satisfactory and was an obstacle put in place that was not necessary and caused more harm than good. New laws for no fault divorce were passed as long ago as the mid-1990s but they were never enacted and ultimately shelved. It is pleasing to see that this time, although it has been a long time in the making, it looks like they will come to fruition.

Bishop & Sewell’s Family lawyers have the knowledge and experience to guide you through these challenging times and have rankings in the Legal 500 and Chambers & Partners for their expertise.

If you are affected by similar issues or would like to have a related discussion in confidence, please call me quoting Ref CB286 on 020 7091 2869 or email: dhodgson@bishopandsewell.co.uk

The above is accurate as at 02 March 2022. The information above may be subject to change during these ever-changing times.


Category: Blog, News | Date: 2nd Mar 2022


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