Lawyer Monthly Magazine August 2020 Edition

54 WWW.LAWYER-MONTHLY.COM | AUG 2020 THE NEW NO FAULT DIVORCE BILL - WHAT DOES IT MEAN? THE NEW NO FAULT DIVORCE BILL WHAT DOES IT MEAN? This long overdue reform is a welcome start, but much work still needs to be done to eliminate the unnecessary hardship caused by divorce and relationship breakdown. There is only one ground for divorce – that the marriage has irretrievably broken down. The new Act does not change this fundamental principle, but it will change how this ground is established. As the law currently stands, a person seeking to divorce has to wait for two years if their spouse consents to the divorce or five years if their spouse does not consent. If you do not wish to wait, the only means to divorce is to ‘blame’ the other party provided you can prove one of three facts: 1) adultery, 2) unreasonable behaviour or 3) desertion. This decision has to be made right at the outset of the process and often sets a negative tone for the subsequent financial negotiations and discussions regarding child-care, thereby doing a disservice to families about to embark on what is already an emotionally challenging process. The need for reform of the law was brought into sharp focus by the case of Owens v Owens [2018] UKSC 41. Mr Owens successfully denied the allegations of unreasonable behaviour made against him by Ms Owens. As a result, the Supreme Court reluctantly held that Ms Owens would have to remain unhappily married until 2020 (by which point the requirement of five years continuous separation would be fulfilled). This case demonstrated how the fault based system could produce counter-intuitive and unfair results. Historically, a divorce was considered a rare and scandalous occurrence. Today, approximately 50% of marriages end in divorce. This shift to a no fault system is hoped to reduce the stigma associated with divorce and reflect the reality that relationship breakdown (like many aspects of life) can occur for any number of reasons over the passage of time. It should not be the place of the law to determine whether one’s own reasons to end a marriage are sufficiently valid. What are the key changes? 1. Dispenses with the facts of divorce This amend removes the layer of difficulty as discussed above. Rather than drum up unnecessary acrimony and distress right at the outset of the proceedings by having to point out where one party went wrong in a marriage, under the new regime neither party will have to blame the other in order to petition for a divorce. The bill seeks to encourage a conciliatory approach and allows for a couple to apply jointly for a divorce (and where there is not a consensus an individual can also unilaterally apply). Even the language of the Bill aims to reduce the potential tension between a divorcing couple by removing reference to ‘petition’ and ‘decree’ in place of more modern and objective terminology such as ‘application’ and ‘order’. 2. Removes the ability to contest a divorce The Bill removes the requirement to evidence that the relationship has broken down. Instead, the parties (or party) has to provide a sworn statement confirming that the marriage has broken down irretrievably. The court is required to take the statement to be conclusive evidence and make a divorce order (and this cannot generally be challenged). As it stands, very few divorces are contested (less than 2%). In practice, couples often agree to the wording in a divorce petition before it is filed at court The Divorce, Dissolution and Separation Act (hereafter ‘the new Act’) attained royal assent on 25 June 2020 and is expected to come into force by Autumn 2021.