In April this year, the Justice Secretary, David Gauke, stated that it was time to “end the blame game” when it comes to divorce. As a result, the legislation for no fault divorce will be introduced as soon as the government have time to make this decision law.
What is the background?
The law governing divorce and financial settlements is currently set out in the Matrimonial Causes Act 1973. Since that time, it has been necessary to prove one of five facts in order to rely on the ground for divorce, which is irretrievable breakdown. These five facts are adultery, unreasonable behaviour, desertion, two years separation with the consent of the other spouse, or 5 years separation without consent. This has meant that in most cases, in the absence of adultery or the necessary period of separation, the only ground available to couples who want to divorce now, is unreasonable behaviour. This has been the position for 45 years, and the time has come for some welcome change.
What is the change?
As soon as parliament has the time to make this change binding law, couples will be able to divorce simply on the basis of irretrievable breakdown of the marriage, without being required to rely on one of the five facts mentioned above. A mirror change in the law will apply to civil partnerships.
There will still be a requirement to wait for a period of six months between the date of the Petition and the dissolution of the marriage or civil partnership, known as a cooling off period, to allow parties time to reflect. However, in circumstances where the Court system has been centralised, which means divorcing couples generally have to wait longer for paperwork to be progressed than ever before, it is unlikely that this 6 month cooling off period will be detrimental to the parties, and importantly, children of the family.
Is it a good thing?
This is undoubtedly a welcome change for us as a large family team, and our clients. The law cannot keep people together, but the law can make the process easier for those who are divorcing and separating.
The effect of the change is that it removes the need to “point the finger” and also prevents one spouse being able to deny the other from getting divorced. The process of having to “blame” one spouse for the breakdown of the marriage has meant that for years, we often experience an acrimonious start to many of our cases, simply because clients are forced to front out blame and cite specific behaviour examples or expressly state that adultery has taken place. It can often have a detrimental effect on the rest of the case, and the negotiations surrounding the financial settlement can become more difficult because relations have necessarily worsened due to the content of the divorce petition. This often does nothing more than increase the stress and acrimony for the parties and worse still, harm and stress to children. The previous law was old fashioned and archaic and in reality, the reason for the divorce has no bearing on the financial settlement.
When will it be law?
Nobody knows when the legislation will be passed so for the time being, we still have to rely on the old “five fact” approach. It is not anticipated that the change will come in for at least a year and our advice, is that if you are contemplating a divorce now, you should not wait until no fault divorce comes in. This is because by dealing the divorce, you delay the resolution of the finances. More often that not it is better to deal with the financial settlement and start negotiations as soon as possible following separation to prevent one spouse depleting assets, changing the structure as to how money or capital is held, attempting to transfer assets out of the matrimonial pot or there being a change in inheritance prospects or a dramatic change in the overall financial position of the couple.
For the time being therefore, we must all proceed as we are currently and clients are advised to push things on as soon as possible, but in due course, the landscape on blame in divorce in certainly going to change.