There has been a great deal of coverage in the media recently about the government’s announcement that it is proposing divorce law shifts to a “no fault” divorce system. There is a perception that “quickie divorces” have now been introduced, but that is not the case. The divorce regime remains unchanged at the current time.
The current system provides that a petitioner relies on one of five facts, and must wait for two years if they want to divorce on a no fault basis. If they wish to proceed more quickly, then the petitioner needs to rely on either adultery committed by their spouse or the unreasonable behaviour of their spouse. This is a fault based system.
Research conducted in 2017 by Professor Liz Trinder of Exeter University, Finding Fault? Divorce Law and Practice in England and Wales, found the following:
- Divorce petitions are often not accurate descriptions of why a marriage broke down and the courts make no judgement about whether allegations are true.
- Uncertainty about what constitutes unreasonable behaviour undermines the principle for the rule of law to be ‘intelligible, clear and predictable’.
- The use of fault may trigger, or exacerbate, parental conflict, which has a negative impact on children.
- Divorce law in England and Wales is out of step with Scotland, most other countries in Europe, and North America.
- Fault does not protect marriage or deter divorce.
The intention is that the current requirement to include a fact, such as adultery or unreasonable behaviour, will be eliminated, and the divorce will proceed solely on the grounds that there has been irretrievable breakdown in the marriage.
Within the divorce petition, one spouse is the Petitioner ie the person applying for the divorce, and the other is the Respondent, responding to the divorce. There is an intention that the application will move away from this partisan approach, and there will be the option instead to make a joint application. The grounds of irretrievable breakdown will not be supported by allegations of adultery or unreasonable behaviour, but will operate by way of notification.
The proposals also suggest that there should be a minimum timeframe of six months, from the petition stage to the end of the decree absolute. There is currently no minimum timeframe in place, save for a requirement that six weeks passes between the date of Decree Nisi and Decree Absolute.
The decision to move the processing of divorces from local court centres to a limited number of centralised processing facilities led to an increase in the time it takes to obtain a divorce. The average time from divorce petition to decree nisi is now approximately 31 weeks (over 7 months). This is an increase of 29% (7 weeks) compared to the previous year. The average time from divorce petition to decree absolute was 56 weeks (over 1 year). This is an increase of 14% (7 weeks) compared to the previous year. Read more in our recent blog: https://www.rainscourt.com/how-long-divorce-petition-2019/. The introduction of a six month timeframe is therefore unlikely to affect the timescales of the process.
