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No Fault Divorce

No Fault Divorce could help to streamline the divorce process, but what does it mean?

No fault divorce on the cards… again.

Back in September 2018 it was reported that a change in divorce law was coming, which would make it less stressful on separating couples. This was brought forward due to the experience of Tini Owen, who had her divorce petition denied by both a judge & the Supreme Court, meaning she has to wait until 2020 to divorce her partner.  

Replacing the current process would lead to a smoother divorce process as it gets rid of the need for one party to place the blame for the marriage breaking down at the other person’s feet.

The prospect of change generated a lot of buzz, which then promptly died down as the Government quickly became pre-occupied.

In recent days the Government have circled back around, and have committed to bringing in No Fault Divorce “as soon as time allows”. This has rekindled the excited of  a great many people in the legal profession. Nigel Sheppard, former Chair of Resolution (formerly the Solicitors Family Law Association) has said he is “delighted that today we are a step closer to reforming our outdated divorce laws” and as a member of Resolution who joined their campaign for no-fault divorce we share his feelings

 

At the moment, anyone who wants a divorce has to fit the reason their marriage has broken down into one of the following five facts:

At the moment, a Divorce can be granted for one of 5 reasons.

  • Adultery (although not with a same sex partner)
  • Desertion (When a spouse has abandoned for a period of at least 2 years)
  • Unreasonable behaviour (This can be any behaviour that makes it unreasonable that you stay with the partner)
  • 2 Years separation with consent (Living separately for at least 2 years, and both parties agree to the divorce)
  • 5 Years without consent (Living Separately for at least 5 years, and proceedings may be issued without one sides consent)

 

In certain cases this can lead to some legal ‘Hoop Jumping’ as an amicable separation would still have to give a reason. Often this will take the form of a behaviour petition, which would lead to one party having to justify the separation, when often it can just be a falling out of love. It can then lead to some resentment, and make the process more painful than it perhaps needs to be.

 

If/when ‘No Fault Divorce’ is introduced; it would mean that a couple would have to provide a “Statement of irretrievable breakdown”, although the details on this at the moment are scarce. It would also allow for a ‘Joint Application for Divorce’, which would further help to reduce the blame game that many couples are forced to play at the moment.

 

The move has also been praised, in the view that it shall help ease the process for any children of the marriage. Aidan Jones, of the charity Relate, said that “This much-needed change to the law is good news for divorcing couples and particularly for any children involved. The outdated fault-based divorce system led parting couples to apportion blame, often resulting in increased animosity and making it harder for ex-partners to develop positive relationships as co-parents”

 

At the same time, there is talk of making a minimum length over which a divorce can take place. Currently there is a 6 week waiting period from when you apply for are granted your Decree Nisi (application to court for divorce), and when you can apply for your Decree Absolut (final step of divorce).

Whilst this wait time would remain the same, the proposed timeframe would mean that you cannot apply for your Nisi until 20 weeks after you give the initial petition.

The Government reasoning for this is to ensure that there is suitable time to explore all options at reconciliation, or for when there is no way back, to ensure that there is enough time to sort out any issues arising from the divorce. This could be finances, arrangements for children, or even visitation rights to the family pet.

There has been a more split view on this potential change, with some seeing it as a needless addition to an already-disruptive process, or those that feel it will lead to clearer heads and better decision making in the long run.

Either way, it has to be a good thing that at long last, we shall have a modern update to some nearly 50 year old legislation.

 

 

 

 

 

 

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