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By Theo Hoppen

Nov 25th, 2020

Resolution’s Good Divorce Week: No fault divorce

The recent case of Owens v Owens, which went all the way to the Supreme Court, cast a light on how out of date English divorce law is compared to other countries. In that case, a husband refused to let his wife divorce him despite the couple living apart and living separate lives.  The Supreme Court agreed with the husband that the wife had not sufficiently proved that the marriage had broken down irretrievably and the couple remained married. 

At the moment, unless you wish to wait 2 years following separation, a spouse has to base their divorce petition on the other’s spouse’s adultery or behaviour.  Although most lawyers try to minimise the conflict that can ensue, this process can understandably inflame what is already an emotionally charged situation. 

In June 2020 a new law was passed paving the way for a “no fault” divorce, which would avoid this situation arising again.  The new legislation will:

  • Introduce a new requirement to provide a statement of irretrievable breakdown so that a spouse does not have to rely on one of the five facts to prove the marriage has broken down (unreasonable behaviour; adultery; desertion; two years’ separation plus consent to divorce; five years’ separation).
  • remove the possibility of contesting the divorce
  • introduce an option for a joint application to dissolve the marriage
  • make sure language is in plain English, for example, changing ‘decree nisi’ to conditional order and ‘decree absolute’ to final order

These changes will also apply to the dissolution of civil partnerships.

No fault divorce is expected to be introduced in autumn 2021 and will also apply to dissolving civil partnerships. They should hopefully lead to a lessening of conflict leaving divorcing couples able to focus on more important practical issues such as the care of their children and the division of their finances.

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