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No-Fault Divorce Set To Come Into Force In Autumn 2021

The Divorce, Dissolution and Separation Bill finished its passage through the House of Commons in late June 2020.  To receive Royal Assent, it must now go back to the House of Lords for the final consideration of an amendment.  However, the coming into force of no-fault divorce will not immediately follow assent.  The Lord Chancellor Robert Buckland told MPs that “time needs to be allowed for careful implementation”.

There are few in the legal profession, judges, family law solicitors, and barristers alike, who are not thrilled that there is now a firm(ish) timetable for bringing England and Wales divorce law into the 21st century.  For couples going through a breakup, the reforms and the ending of fault-based divorce will help decrease animosity and encourage trust and open communication when it comes to negotiating the financial settlement and child arrangements.

27 August 2020
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A quick recap on the current divorce law

At present, the only ground for divorce is that the marriage has irrevocably broken down because of:
•    Adultery
•    Unreasonable behaviour
•    Desertion
•    You have lived apart for more than two years, and both agree to the divorce
•    You have lived apart for at least five years (no consent from the other spouse required)

The Divorce, Dissolution and Separation Bill will:
•    change the obligation to deliver proof of conduct or separation with a new requirement to provide a statement of irretrievable breakdown followed by a notice period of 26 weeks
•    take away the ability to contest a divorce
•    allow for joint divorce applications
•    modernise the language of divorce; for example decree nisi to conditional order and decree nisi to final order

Although the Bill provides many advantages for divorcing couples and their children, there are concerns.  The main source of debate is around the notice period and when it starts to run.

The 26-week notice period

The Bill proposes that rather than run the 26-week notice period from the date the respondent receives the information that their spouse wishes to divorce them, it will begin from the date notice is given to the court office by the petitioner.  Extraordinarily, this is irrespective of when the notice is received or even whether the respondent is aware of the fact divorce is imminent.   For financial settlements, not to mention emotional and mental health, this provides the petitioner with an unfair advantage and renders the entire notice period meaningless for the respondent.

Delays can easily occur that result in the respondent not receiving notice until weeks or even months after the petitioner files for divorce.  These include delays by the regional divorce centres in processing the notice, both within the UK and abroad, and the petitioner serving late notice personally (there is no requirement against the petitioner serving notice themselves).

In Thum v Thum [2018] EWCA Civ 624, Lord Justice Moylan in the Court of Appeal and Mr Justice Mostyn in the High Court, both stated it was unacceptable for the petitioner to provide notice four months after filing her petition.   However, they confirmed that there was no law in place to require prompt serving. 

Law Society president Simon Davis told the Law Society Gazette:

“We have long argued the notice period should begin when the divorce application is received by the respondent rather than when the divorce is applied for – ensuring both partners are on the same page from the start and have sufficient time to seek the legal and financial advice they need. We commend the government for moving forward with the legislation and would welcome any opportunities to address our concerns around the notice period.”

Most of the legal profession is calling for an amendment to the Bill, requiring that the notice period begins to run after the respondent has received the divorce petition.

In summary

The Divorce, Dissolution and Separation Bill has been a long time coming and will undoubtedly make divorce less painful.  Removing blame will help couples move forward with negotiating financial settlements and child arrangements between themselves, which will, in turn, minimise the need for court involvement, which is stressful and expensive.

We will continue to update you as this Bill progresses into law.
Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey.  We have a highly experienced family law team who can assist you with all divorce related matters.  To make an appointment, please call us on 01932 840 111.