New Year, New Beginnings - Changes to the Divorce Process in 2022

Julian Hunt, Head of the Family department, has been an active campaigner in the move toward no-fault divorce and successfully lobbied local MP’s to support the The Divorce, Dissolution and Separation Act 2020 which will implement major reform to the divorce process, becoming law on 6 April of this year.

What is the legislation’s main reform?

The Act will remove the concept of ‘fault’ in divorce proceedings – a welcome change to the divorce legislation that has not been amended in any significant way for over 50 years.

What is the current regime?

If a couple want to divorce, they have to present their petition on one of five ‘facts’-  Adultery, Unreasonable behaviour, Desertion, Two years’ separation with consent, or Five years’ separation without consent.

To divorce quickly those options are limited to the grounds of adultery and unreasonable behaviour, with the less contentious divorce routes only achievable after two- or five-years separation.

Why doesn’t the current regime work?

The current regime fosters animosity between parties by encouraging the assignment of blame, which can lead to delays in obtaining the end goal of a divorce and can have a knock-on effect if the parties have children and financial matters to resolve.

The need for a no-fault divorce process was highlighted in the recent case of Owens v Owens.

Mrs Owens unreasonable behaviour petition was defended by Mr Owens, arguing that his behaviour had not been unreasonable when looked at in the context of their marriage. The Court agreed with him and as such the marriage could not be said to have irretrievably broken down and her petition was dismissed. Mrs Owens appealed, but it was held that judges could only interpret and apply the law and that under the current regime the petitioner is required to find fault in the respondent. Mrs Owens was left having to wait out a 5-year separation in order to proceed with a divorce without her husband’s consent.

What is the aim of the reform and why is it needed?

The fault system encourages discord, and the tone of blame is often carried over to slow down or frustrate the achieving of childcare and financial settlements.

A common misconception under the fault-based regime is that the bad behaviour of one party will affect the financial outcome of the divorce, when in fact one has no bearing on the other, unless the behaviour is sufficiently extreme but, these cases are extremely rare.

An acrimonious divorce consumes parties’ lives, and that acrimony usually spills over even once the Decree Absolute is finalised, especially where children are involved.

The proposed changes will simplify the divorce process and reduce conflict from the very start. Parties will be able to focus on the important issues like children, property and finances bringing resolution more quickly and amicably so that both can heal and move forward.

What will be the new regime?

The new legislation will:

• replace the ‘five facts’ with a new requirement to provide a statement of irretrievable breakdown (the Court then must take this statement as conclusive evidence that the marriage has broken down irretrievably);
• remove the possibility of contesting the divorce;
• introduce an option for a joint application;

These changes will also apply to the dissolution of civil partnerships.

If you are contemplating separation and require advice on the divorce process or help in resolving your financial affairs, or arrangements for the children, please get in touch with the Family Team on 01273249200.