For several years, No-Fault Divorce has been talked about in the legal sphere and is due to come into force from April 2022. The Government’s Divorce, Dissolution and Separation Act 2020 will provide the possibility of no-fault divorce. Many commentators feel that the current divorce law is out date and encourages conflict between couples. However, those who oppose no-fault divorce contend that the institution of marriage should be protected. Let’s look at what the Bill will change and how the impact this will have on couples’ ability to divorce in the future.
The Act was passed in June 2020, but its implementation has been delayed due to the Pandemic. The new legislation will:
Under current divorce proceedings, the “irretrievable breakdown” of the marriage must be proven on the grounds of one of five possible facts: adultery, abandonment, unreasonable behaviour or living separately for two or five years. At present, a person may request a divorce on the grounds of adultery, abandonment or unreasonable behaviour from their spouse. The other party can oppose the divorce petition (see Owens v Owens), although this is not very common. If the petition is opposed, then the court will decide whether the ground for divorce is proven. If the petition is successfully opposed, or if the couple wishes to divorce without assigning blame to either party, then a divorce is granted automatically after two years of living apart. If the parties disagree, then the divorce is granted after 5 years of living apart.
The Bill’s supporters say that the changes will simplify current practices and reduce conflicts between couples, as it will take away the need for one party to accept fault and therefore will protect the couple’s relationship in the future. Supporters say no-fault divorce will allow couples to focus on more important issues like children, property and finances. No-fault divorces will be quicker and less expensive than fault-based ones. Importantly, it provides a powerful tool for people in unhealthy or abusive relationships to walk away from a marriage without the need to re-live the trauma or have a court rule whether their experience is ‘enough to satisfy one of the facts.
Some commentators claim that making no-fault divorce available will allow one person to unilaterally resign from the marriage uncontested. Therefore, some say this reduces the chances of reconciliation. It is estimated that around 10% of couples that start divorce proceedings do not see the proceedings through to the end, indicating that at least some of the time, couples can work out their differences and choose to stay married. Moreover, some say that marriage is an institution that two people willingly enter for life. The vows are a lifelong commitment to the other party and the marriage vows should not be reduced to a contract that either party can withdraw from. Some commentators contend that there is already an avenue for no-fault divorce, i.e., living apart for five years. The divorce just takes longer to go through than divorces which assign blame to a party.
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