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What is ‘No-Fault Divorce’?

It may come as a surprise to you to know there is still no concept of ‘no-fault divorce’ in the law of England and Wales.  This means that one person is effectively blamed for being at ‘fault’ in divorce and dissolution proceedings.  But thankfully, after years of waiting, this is about to change.  Back in April 2019, the government confirmed that divorce law in England and Wales would be modified to include the legal notion of no-fault divorce, thereby removing the need for acrimony and blame.  In this article, we will explain the current legal fault-based grounds for divorce and how the law will be changing.

22 October 2021
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What are the grounds for divorce under current law in England and Wales?

Under the current Matrimonial Causes Act 1973 in England and Wales, one partner is required to file for divorce, citing the behaviour of the other partner as a reason for the irretrievable breakdown of the marriage or civil partnership.  These reasons include:

  • Adultery
  • Unreasonable behaviour
  • Desertion

It is also possible to file for divorce where both parties have lived apart for more than two years and mutually agree to the divorce, or they have lived apart for five years or more, and there is no mutual agreement.

As such, unless a couple wishes to wait for two years, the legal system effectively forces one person to blame another in order to proceed with the divorce.

This has long been a bugbear of the law in England and Wales, with matters coming to a head following the Supreme Court case of Owens v Owens from 2018.  In this case, the Supreme Court concluded that because the appellant had not proven her husband’s behaviour was ‘unreasonable’, she could not divorce him; “The appeal of Mrs Owens must be dismissed. She must remain married to Mr Owens for the time being”.  “The time being” in this context means that both parties could not divorce until they had been separated for five years.  After the case concluded, Justice Secretary David Gauke stated that divorce law in England and Wales is “out of touch with modern life”.  
 

What is the Divorce, Dissolution and Separation Act (DDSA) 2020?

Following the case of Owens v Owens and ongoing pressure from campaign groups and divorce lawyers, the government called for a consultation on fault-based divorce.  At the time, Nigel Shepherd, a former chair of the family law organisation Resolution, stated, “For far too long, couples have been forced into needless acrimony and conflict in order to satisfy an outdated legal requirement….Apportioning blame can lead to long-term damage to relationships between children and their parents and can undermine attempts to resolve matters outside of an already overstretched court system”.

As a result of the consultation, the Divorce, Dissolution and Separation Act (DDSA) 2020 was drafted and passed by parliament, but it has yet to come into force.  Core to the DDSA is that neither party to a divorce is required to lay blame on the other for the breakdown of a marriage or civil partnership.  This will be replaced by a statement written by one or both parties confirming the irretrievable breakdown of the marriage or civil partnership.  This also means that the other party cannot contest the divorce or dissolution if they do not agree.  

The new process will require the Court considering the divorce or dissolution to review the statement and, if they accept that the marriage has irretrievably broken down, issue a divorce order. 
 

Will the DDSA 2020 make divorce easier?

The DDSA 2020 is not about making the divorce process easier; rather, it is about allowing one or both parties to file a petition to end their relationship without the need to lay blame.  This, in turn, will help to remove anger and acrimony, allowing both parties to walk away and start their new lives. 

When will the DDSA come into force?

In response to a parliamentary question on the DDSA 2020 on 25th May 2021, MP Chris Philip confirmed the law would come into force on 6th April 2020.  According to Resolution UK, “the 6th April is now fixed as a matter of Parliamentary record, rather than the indicative timetable previously being worked toward”.  

Final words

All of this will raise the question for many considering divorce of whether to proceed now or wait until the new Act is in law.  This will very much depend on the circumstances of the relationship breakdown, the situation regarding any children involved, and the safety and welfare of the parties.  It is advisable to speak to a family law Solicitor with whom you can discuss your situation and ask for advice.  They will be able to explain the pros and cons of proceeding now or waiting.  That said, until the new law is in force, there is always the chance it may slip further beyond the current April 2022 timescale.

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 matters relating to divorce proceedings.  To make an appointment, please call us on 01932 840 111.