Family and Matrimonial Solicitor, Lisa Cogger, of Bowcock & Pursaill Solicitors, explains how the recently announced changes to UK divorce law by the Government will work in England and Wales.
Why is UK divorce law changing?
Existing divorce law in the UK has remained unaltered for nearly 50 years, and increasing demands for change came following the Tini Owens case in 2018. The Supreme Court ruled in July that she could not divorce her husband without her spouse’s consent until they have lived apart for a period of five years. Owens and her husband, Hugh Owens, had been living separate lives since 2015.
What is the difference between a fault and a no-fault divorce?
- Unreasonable behaviour
- Desertion (for at least 2 years)
- Two years’ separation with consent of your spouse (the respondent) to the divorce petition
- Five years’ separation without consent of your spouse.
A no-fault divorce refers to a type of divorce in which the spouse that’s filing for divorce doesn’t have to prove any fault on the part of the other spouse.
Why would I choose a no-fault divorce?
The current system of divorce forces couples to blame their spouse for the divorce based on unreasonable behaviour. This can include violence, verbal abuse, threats, alcohol or drug related behaviour, lack of emotional support, gambling or lack of a sex life. As a result, the legal process makes what is already a very stressful situation even more bitter and acrimonious.
By encouraging no blame to be attached to either party it reduces conflict and avoids damaging the relationship further between the divorcing couple, which is especially beneficial where children are involved.
A no-fault divorce simply requires notice that a marriage has irretrievably broken down, avoiding the potential backlash and fear of violence which can follow when someone is forcibly required to provide examples of their spouse’s unreasonable behaviour.
Seven per cent of Divorce Petitions which asserted blame admitted that the allegations of fault were not true, but it was the easiest option, which means courts are deliberately misled by a quarter of divorce petitions which contain false allegations.
Do other countries have a no-fault divorce system?
In many countries there is a simplified system where you jointly sign a statement of irreconcilable differences. In the US acceptable grounds fall into two categories, fault and no-fault, with no fault reasons including incompatibility and separation.
In Australian Law the Family Law Act 1975 established the principle of no-fault divorce. Their courts do not consider why a marriage ended as the only ground for divorce is that the marriage has broken down and there is no reasonable likelihood that the parties will get back together.
In Canada a no-fault divorce simply requires the completion of a one-year separation period.
When will no-fault divorce begin in the UK?
The Ministry of Justice issued a consultation on no-fault divorce in September 2018 and in April 2019 the government published its response to the consultation and confirmed it would go ahead with the planned changes by introducing new legislation.
The Justice Secretary, David Gauke, has since confirmed he will bring in legislation enacting the reform in the next session of parliament in 2019.
What other divorce process options are there?
The whole process is led by the client and involves a series of four-way meetings where both solicitors and their clients are present and work together to find a fair and mutually acceptable solution without the threat of court proceedings.
The process starts with everyone entering into a written agreement not to go to court. It is therefore a process free from court-imposed timescales and the pace of the collaborative process is set and managed by the parties. Other benefits can include a faster settlement, as most cases settle in 3-4 meetings, so it is usually a quicker process than the traditional processes of being embroiled in contentious litigation.