Royal assent was granted to the Divorce, Dissolution and Separation Bill on 25 June 2020 heralding the hotly anticipated "no-fault divorce". Whilst the Act is unlikely to come into force before Autumn 2021, at the earliest, it is considered to be the most welcome reform to divorce law for 50 years.  The current law applying to divorce for opposite-sex couples requires one of the following grounds to be demonstrated before the court, whereas same-sex couples have the same grounds with the exception of adultery:

  • Desertion, where one of the parties has deserted the other for two years or more. This once popular ground is seldom used now.
  • Separation, either with consent after two years or without consent after five years.  Separation after two years with the consent of both parties is the closest to "no-fault" available hitherto.
  • Adultery, often the most acrimonious and upsetting ground frequently leading to long drawn out court battles. It is used in only around 10% of divorce cases.
  • Unreasonable behaviour is the most frequently cited ground used in 46.3% of cases in 2018. Office of National Statistics (ONS)  

The Divorce, Dissolution and Separation Act 2020 introduces several changes to divorce law, the major change is the new ground of no-fault.  As the ground suggests there will be no requirement on the part of one party to demonstrate any type of behaviour that is deemed to be unacceptable and the reason for the marriage to have failed. The Act allows both parties to petition for divorce in a joint petition, something that has not been permitted in England and Wales, although it is allowed in other jurisdictions.  The Act requires that the divorcing couple draft a statement of irretrievable breakdown which can be submitted jointly by both parties.  There will no longer be the opportunity to contest the divorce.  In order to remove the possibility of a "spur of the moment" decision, there will be a period of time for reflection, most likely 20 weeks, to ensure that both parties are definite that the decision is founded on a genuine desire to end the marriage. This is a considerable extension to the existing shorter time span of six weeks and one day between a decree nisi and decree absolute.  The new Act abandons the terms decree nisi and decree absolute in exchange for "conditional divorce order" and "final divorce order" in the belief that the change of terminology is more understandable and will serve better to clarify the process of divorce.

Daniel Theron, a partner, commented "the ability for a divorcing couple to bring a joint petition for divorce is a major development, as frequently there is a reluctance by one party to be the individual who brings about the end of the marriage, regardless of the fact that both parties accept that the marriage is over; this is particularly the case where there are children of the marriage, a parent does not want their child or children to think that they alone brought about the end of the marriage by petitioning for divorce." Daniel further commented, "it is not unknown for a person to step back from petitioning for divorce, however much they wish to end the marriage, to force the other party into the position of having to do so."

The suggestion that to simply wait for two years separation, in the case of a consenting couple, is an equally trouble-free option is not entirely valid.  More people marrying for the first time at a later age, having to wait two years before being able to legally disentangle joint finances and progress to another marriage, is unwelcome.

Daniel Theron also remarked "the new ground in the new Act may not remove all conflict in divorce but it will go a considerable way to making divorce a less painful experience for some couples and brings divorce law up-to-date. The idea that the new Act will make divorce easier overlooks the fact that in the vast majority of cases most divorcing couples wish to be divorced."  Daniel went on to say "acrimony often only creeps in when "blame" is apportioned.  It can only be a good thing if the obligation to expose aspects of the behaviour of one party whilst in the unhappy situation of a failing marriage is now removed. The couple can go their separate ways without their family, friends, neighbours and colleagues knowing highly personal details about the decline of their marriage."

Giambrone's family law team have found in the past that whilst the marriage is no longer viable neither party has actually behaved in a truly unreasonable manner; the individual petitioning for divorce struggles to find examples of behaviour that fits the ground.  This can lead to the inclusion of information regarding behaviour that the other party not only finds embarrassing but was completely unaware was unwelcome, such as dirty socks left lying on the floor or poor table manners prior to receiving a formal court document.  The future for divorce may now be far less damaging for all concerned.

Originally published 22-July-2020.

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