Property  

What the 'no-fault' divorce bill entails

  • Explain what has prompted the latest change in divorce law
  • Describe what is wrong with divorce law as it stands
  • Identify what divorce would mean under the new law
CPD
Approx.30min
What the 'no-fault' divorce bill entails

Without question, the planned change to no-fault divorce will reduce the emotional cost of separation and brings the law into line with modern life.

But it will not a be a silver bullet, and there is still much work to be done to eliminate more of the unnecessary havoc caused by divorce. 

No-fault is a great start, but we need also to look at the broader questions of how to deal most equitably with financial disputes (and in particular to consider the role of pre-nuptial agreements in our jurisdiction).

The Divorce, Dissolution and Separation Bill (commonly referred as the no-fault divorce bill) has passed its third reading in the House of Commons and will next be considered by the House of Lords.

It is estimated to become law by Autumn 2021. It is being heralded as the biggest shake up in divorce law for over 50 years. 

It is widely believed that the catalyst for the new law was the case of Owens vs. Owens in July 2018, in which the Supreme Court reluctantly ruled against a petition by the 68-year-old Tini Owens to be allowed to divorce her husband.

The unhappy Mrs Owens was told that she was to remain married to man she no longer loved until they had lived separately for five years in 2020. At which point she was free to move on with her emotional and financial life. 

Since 1969, married couples have only been allowed to divorce for one reason – that the marriage has irretrievably broken down. 

The new Divorce Bill does not seek to change this fundamental principle, but it will change what qualifies as irretrievable breakdown.

As the law stands

As the law currently stands, a person seeking to divorce has to wait for two years if their spouse consents to the divorce or five years if their spouse does not consent.

If you do not wish to wait this long, the only way to divorce is to establish that your spouse is guilty of either adultery; unreasonable behaviour or (rarely these days) desertion.  

This has to be done right at the outset of the process and crucially often sets a negative emotional tone for the subsequent financial negotiations and discussions regarding childcare.

This does both the family concerned and society as a whole a serious disservice, and although the planned changes are not a silver bullet, they should help reduce the harm that divorce can do. 

Historical divorce

Society has changed significantly since the current divorce regime was created. 

Today families come in many forms. Many couples cohabit rather than get married, children born out of wedlock are commonplace, couples can opt to enter a civil partnership as an alternative to marriage and marriage is now open to all couples regardless of their sexual orientation.