Currently, a person wishing to divorce their spouse or dissolve their civil partnership must prove that their marriage or civil partnership has irretrievably broken down. However, in order to demonstrate irretrievable breakdown, they must rely on one of five facts. Three of these facts are conduct-related and therefore inherently fault-based (unreasonable behaviour, adultery and desertion). The remaining two are based on periods of separation, two years separation with the consent of the other spouse, or five years separation if no consent is given.
Waiting for two years or five years, may cause practical or financial difficulties for separating couples, and feel long once they have reached the difficult conclusion that the marriage is over. It is little surprise then that many choose to base their petition for divorce on the fact of ‘unreasonable behaviour’, which does not share the same time constraints. It does, however, involve listing examples of behaviour which make it ‘intolerable’ to live with their spouse. This can be hurtful and divisive. From the outset, it sets an emotional tone which is not conducive to constructive negotiations regarding the family finances or arrangements for children.
As it stands, one of the married couple can contest or ‘defend’ the divorce petition. In practice, couples often agree to the wording in a divorce petition before it is filed at court and despite one party taking the notional ‘blame’, the reality is that the majority of cases are carried out by consent.
Individuals wishing to divorce their spouse will still rely on the single ground for divorce – irretrievable breakdown of the marriage. However, they will not need to rely on any of the ‘facts’ of divorce, listed above.
In addition, couples can opt to apply jointly for divorce, reflecting the reality that the majority of couples agree that their marriage has broken down.
Even where there is a sole applicant, there will no longer be an avenue for the other spouse to defend the divorce.
Perhaps less positively, the new law brings with it different time constraints. Following the new Act’s implementation, there will be a mandatory 20-week period between filing the divorce application and obtaining the conditional order (the first stage of the divorce previously called the decree nisi). After that, the final divorce order (previously called the decree absolute) cannot be applied for until at least six weeks from the date of the conditional order. This means that there is a minimum 26 week period (or six months) before a divorce can be finalised.
The 26 week period has I been introduced to ‘encourage couples to reflect on their marriage’, no doubt, with the hope of possible reconciliation. This part of the Act has been criticised for underestimating the long and difficult deliberations spouses often face before arriving at a decision to divorce.
For those who are forced to petition based on unreasonable behaviour it is helpful to remember that this element of blame is largely symbolic and won’t affect the outcome of financial or children proceedings in most cases. Generally, the other spouse simply ‘denies’ the allegations of unreasonable behaviour but allows the divorce to proceed undefended. For those that fear their spouse will try to obstruct the divorce as much as possible waiting for the new system may seem worth it to bypass the inevitable stress and potential legal costs their spouse will cause. This approach, of course, has to be weighed against the difficulties of remaining emotionally and financially tied to that person for the foreseeable future.
Concluding that your marriage is over is naturally an emotionally challenging and stressful time, bringing with it a host of complicated practical issues, such as the division of family finances and sorting out child arrangements. The new no-fault based law is an acknowledgement that the process of divorce itself need not add to these challenges. Spouses should be able to take that first step to a new chapter when they are ready to do so, without having to rely on a tired and often artificial system of proving that their marriage has broken down.