Is #nofaultdivorce on its way in England and Wales?
On 25 June 2019 the Divorce Dissolution and Separation Bill had its second reading in Parliament. If the Bill becomes law it will be possible to divorce without either waiting for a minimum of two years or attaching fault to one of the parties. This is likely to reduce conflict in divorce, and make it a kinder, if not easier, process for many separating couples. In Is #nofaultdivorce on its way in England and Wales? we look at the proposed changes and how they will benefit thousands of unhappy couples each year.
The current system
I explain the current legal grounds for divorce fully in my book How To Be A Lady Who Leaves. Get yourself a copy – it’s an essential emotional, practical and legal guide to divorce in England and Wales (and a lot cheaper than a solicitor). Of course, there will be an updated edition just as soon as the changes are given Royal assent!
Briefly, the current system requires the divorcing couple to prove that the marriage has broken down irretrievably by demonstrating one of five facts. These five facts either relate to behaviour or to the length of time the couple has been separated.
This means that couples either have to wait for a minimum of two years, or for one party to be at fault. Often, couples don’t want to put their lives on hold for two years, so need to assign blame for the divorce. This can be done collaboratively, with ex-partners ‘playing the game’ to agree a form of words they are happy with that meet the legal requirements.
Why the current system needs replacing
Couples are not always able to work together in this way, and in acrimonious relationship breakdowns one party may defend the divorce (contest that the marriage has broken down or that the facts for divorce are correct).
For some separating couples this can be a non-negotiable obstacle, meaning people stay in loveless and sometimes abusive relationships until they get to the two or five year threshold. Last year Tini Owens lost her supreme court battle to divorce – as her husband would not consent she will need to wait until they have lived separately for five years.
Even when fault is assigned to one party it can create additional conflict and bad feeling at a time when emotions and stress levels are already high. This is particularly destructive when children are involved, as it can increase tension between parents and mean the children become a battleground.
The proposed system
Under the proposed system one or both of the divorcing parties will state the marriage is over. There will then be a 20 week minimum period before a conditional divorce notice is granted, followed at least six weeks later by a final notice (which replaces the decree absolute). This new system removes the need for blame or proving one of the ‘five facts’.
Is #nofaultdivorce a good thing?
Yes! Divorce will always involve difficult conversations, emotions and decisions to some extent. But removing the blame game also removes much of the heat out of the process.
It is also helpful for people in high conflict relationships as it removes the opportunity to defend the divorce.
Some media outlets have suggested the changes are a negative move, as they will increase divorce rates. I say what I have always said about marriage and divorce – I believe in good marriages. As I said in my Facebook post, these changes may see those who have been bidding their time so that can use the no-fault process, making applications. I agree with what David Gauke actually said (shared by Nigel Shepherd of @MillsandReeve) you can read it here: David Gauke on #nofaultdivorce
I also believe that we all deserve to live happy lives. Why should you stay in a loveless or unhappy marriage? I don’t believe people divorce on a whim – I have yet to meet a woman who has decided to divorce because it will be a fun thing to do!
What happens next?
You don’t need to wait for the new system to become law. For some people, it’s important to start the divorce proceedings sooner rather than later – whether that’s for your emotional wellbeing, so you can move on or because you need to get out of a high conflict situation.
If you’d like to discuss what’s right for you, let’s jump on a call to see how I can help! It might be that you need to just sense check your thought process, or you realise you need greater support. There are various different ways that we can work together to suit your circumstances budget and preferred style of getting support.
The Divorce Alchemist
Emma Heptonstall, the Divorce Alchemist is author of the Amazon best selling book How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready. A former lawyer, Emma is a practising family mediator and founder of Get Divorce Ready the online self study and group programmes. Emma has been featured on BBC Radio, The Telegraph, the iPaper and in Marie Claire Magazine. To find out more visit www.emmaheptonstall.com