This blog was inspired by Professor David Hodson OBE QC’s article titled “England’s new divorce law from April 2022”. Nicholes Family Lawyers thank him for his insights and expertise. David’s article was recently published by the International Family Law Group and can be accessed here.
In the most notable change to the United Kingdom’s divorce law since 1969, England and Wales will adopt a new ‘no-fault’ divorce law from 6 April 2022. Under both the previous and the new laws, the only basis for seeking a divorce was the irretrievable breakdown of a marriage. However under the previous legislation, there were limited ways to establish irretrievable marriage breakdown. These included adultery, unreasonable behaviour, desertion, separation for two years with consent, and separation for five years with consent. In practice, none of these options allowed for immediate allegations of divorce without allegations of fault.
It is anticipated that the new Divorce, Dissolution and Separation Act 2020 will improve accessibility to divorce and recognise a wider spectrum of marriage breakdowns. The new law covers marriage, civil partnership and nullity. Although irretrievable breakdown remains the only basis for divorce, the new law also provides for divorce after six months has elapsed. This time period commences on the date papers are filed at court, rather than when they are served on the other party. Consequently, in instances where the applicant does not inform the respondent that they have filed for a divorce, respondents may have less than several months’ notice – an amendment which has proven controversial.
Importantly, under the new legislation, fault is not an evidential requirement to establish irretrievable breakdown. This means that for a couple to divorce, it does not need to be proven that either party is ‘at fault’ for the breakdown of the marriage. Unless strict statutory provisions apply, a respondent cannot oppose a divorce. The new legislation also allows for joint divorce applications, which is already an option for couples seeking a divorce in Australia.
Interestingly, Australia’s introduction of the no-fault divorce scheme preceded the United Kingdom by a half-century. Prior to 1975, Australians seeking a divorce were required to prove that their spouse was to blame. Grounds for divorce ranged from habitual drunkenness to adultery, with many cases involving the use of private investigators. The introduction of the Family Law Act 1975 (Cth) established Australia’s no-fault divorce scheme. Instead of having to establish that the other party was at fault, applicants only need to show that they have been separated for 12 months. In Australia, the no-fault scheme was the product of increasing social awareness that marriage is a contractual obligation which both parties should be free to exit equally. No-fault divorce legislation intends to ease the stress experienced by parties to a divorce, and to encourage dispute resolution as opposed to confrontation.
The United Kingdom’s adoption of the no-fault divorce scheme is a welcome departure from the dated and problematic prior legislation. It is understood that the new Act will improve accessibility and reduce conflict, allowing couples to focus on central issues such as children and property.