Divorce law: out with the old and in with the new

Divorce law: out with the old and in with the new

Assigning fault or blame between spouses has been at the heart of divorce legislation for centuries. The need to prove fault was expanded at various stages between 1857 and 1973.

The Matrimonial Causes Act 1973 provided one ground for divorce; that the marriage had irretrievably broken down. There were five factors to prove this: adultery, unreasonable behaviour, desertion of the other party, two years separation (with both parties giving their consent to proceed with the divorce), and five years separation (even if one party did not wish to divorce).

This fault-based system pitted one spouse against the other. The adversarial approach caused conflict from the beginning of the process, which would frequently spill over into issues about child arrangements and division of family finances.

Nevertheless, couples have long been encouraged to divorce in an amicable way. In particular, to work collaboratively and co-operatively as they navigate co-parenting children and to be fair to one another when considering their individual financial needs when reaching a financial settlement. In reality, this approach was often difficult for couples to achieve when the starting point of divorce is centred on blaming the other spouse.

In the 1990s, there was a big push for an “no fault” legal process for divorcing couples. However, there was a lot of opposition. Although professionals working with families and children could see the difference that a no fault process could have on children and the family, Parliament had no appetite for it. By 2010, with social values, family dynamics and family structures rapidly changing, there was a ground swell of ambition for no fault divorce.

In June 2020, the new no fault divorce legislation received Royal Assent culminating on 31st March 2022 being the final day a petition could be submitted under the old legislation.

6th April 2022 marks a new dawn for no fault divorce, ending allegations of unreasonable behaviour; years of the wrath of the spouses claiming adultery; excessive claims for costs often used as a punishment for the other’s faults; and preventing the misuse of the process to continue a campaign of domestic abuse by intimidation or coercive control.

Instead, couples are encouraged to work co-operatively and collaboratively from the start. The language of the process has changed; gone are Petitions, Decree Nisi and Decree Absolute. In their place, Application, Conditional Order and Final Order will be used. Couples can choose who will issue the application, or they can jointly make the application.

The process is significantly simplified, which should reduce costs. There will be an overall period of 26 weeks: an initial 20 weeks, which provides for a period of reflection; followed by a further 6 weeks between the conditional order and the final order.

The 20-week reflective period also enables couples to work together over practical arrangements for the children and financial matters. Therefore, mediation should have a greater chance of succeeding.

As welcome as the new legislation is, there are several concerns and risks. The new legislation only needs one party to issue the application, leaving the other spouse unable to challenge the application, other than in very limited circumstances. Further, in domestically abusive relationships, where only one person needs to issue an application, the process can still be used as a way of controlling the victim over family finances or the care of the children.

These changes are an important milestone in family law, and on balance, it provides optimism for the future. Looking ahead, the next area to tackle is the financial settlement process, to better ensure that both parties negotiate a settlement that is mutually beneficial.

Susan J Williams, Partner & Head of Family (Cardiff), Ince

Susan Williams, Partner and Head of Family (Cardiff), Ince

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