No-fault divorce is likely to be introduced, but professionals say fair deal on asset sharing means mediation must remain top of the agenda
The news that no-fault divorce is likely to become law has been welcomed, but while the legislation waits for its place in the parliamentary calendar, families must continue to deal with one party being ‘blamed’ for the breakup or wait for the change in the law.
And with the parliamentary calendar full of another divorce – the UK’s departure from the EU – no date has been given for debating the proposed changes.
Official statistics show that almost half of divorce petitions between 2016 and 2018 cited behaviour as the reason for ending the marriage, rather than the required period of separation. However, while signalling the likely shift to mutual agreement, the Ministry of Justice announcement sets out plans for a minimum six month timeframe from making a petition until final divorce, so that couples have time for reflection before securing a divorce.
Professionals have welcomed the potential change in the law, saying it will help couples to focus on non-combative negotiations when it comes to agreeing family arrangements or dividing up assets when the marriage ends.
Said family law expert Mandeep Clair of Grant Saw Solicitors LLP. “The blame-game can further inflame relations that are already strained by a breakdown, so this move is certainly one to be welcomed, and hopefully will signal a general shift towards a more conciliatory approach to divorce in future, as there will always be a need for negotiation between couples.
“We are dealing with increasingly complex financial and family arrangements, as many couples undertake second and subsequent marriages, often with children from previous relationships. It means that even in the most amicable of divorces, it’s to be expected that each side will wish to secure the best outcome in terms of asset sharing, but mutual agreement, rather than disagreement is the outcome we strive for.”
She added: “It makes mediation an important aspect of the divorce process, particularly where children are involved. Many people don’t want to face their ex, but it’s a flexible process and no one is made to do anything that makes them uncomfortable and having a legal adviser with you helps in overcoming any worries of feeling intimidated or cornered. The main difference with going to court is the focus on both sides being happy, whereas the judge has greater discretion and does not have to come up with a solution that everyone likes.”
Grounds for divorce under the existing Matrimonial Causes Act 1973 require an applicant to prove their partner is at fault through adultery, desertion or unreasonable behaviour. Alternatively, and only if both sides agree, they can part after two years of separation. If no fault is given, and one party does not consent to the divorce, then the period of separation is extended to living apart for five years. And the Children and Families Act 2014 says that a separating couple must consider using mediation before they can ask a court to sort things out for them.
The proposed changes include:
- the irretrievable breakdown of a marriage to be the sole ground
- the option of a joint application for divorce, alongside retaining the option for one party to initiate the process
- removing the ability to contest a divorce
- continuing to have a two-stage legal process, known currently as the decree nisi and decree absolute
- introducing a minimum timeframe of six months from the date of making the petition until final divorce with 20 weeks from petition to decree nisi and six weeks from decree nisi to decree absolute
This is not legal advice; it is intended to provide information of general interest about current legal issues.