England & Wales to offer Fast No-Fault Divorce?

The draft legislation ‘Divorce, Dissolution and Separation Bill’ has its 2nd reading in the House of Lords on 5 February 2020. What does it all mean?

It is suggested that the no-fault divorce will be based on a period of time between the start of the marriage and the final decree.  After consultation this was fixed at 26 weeks or six months. Few dispute this period.

What is a no-fault divorce?

Under current law in England and Wales, in order for a couple to get divorced within 2 years of separating, one person needs to blame the other for the breakdown of the marriage, by either citing the other persons adultery, unreasonable behaviour or desertion. The person filing for divorce cannot cite their own behaviour or their adultery.

It currently means that one person is required to ‘blame’ the other and provide examples of the other's behaviour and present this to the Court.

26-week calculation

Recommendations within the new Bill include no obligation for the respondent [the recipient of the divorce] to be served with divorce papers at the beginning when the 26-week time period commences.  The new law expects a period of 20 weeks between the commencement of the proceedings and the first decree of divorce and then 6 weeks until the final decree of divorce, hence the 26-week period. 

6-week’s notice

England will now be one of the fastest places to get divorce anywhere in the world as the recipient of the divorce known as the respondent may not know about any divorce taking place at all until it’s all too late, as they may only know when they are served along with the application for the first decree of divorce with only six weeks or so then to go.  It will leave the recipient with almost no time to come to terms with the divorce or take protective financial steps. There will be no opportunity to reflect, consider and talk and make it even more difficult to consider counselling and reconciliation, let alone negotiation and mediation to resolve the financial matters.

When the bill was originally presented in the consultation by the Ministry of Justice, there was “a period of reflection and consideration”, this does not exist in the new Bill.  The irony is that the reforms to the current divorce law to remove the necessity to blame one party and remove hostility has in fact given rise to the possibility of unfairness in terms of enabling the petitioner who issues the divorce to decide the timeframe of when their spouse will be told.

The proposed changes and the reforms for a no-fault system impact on the respondent in a number of ways:

• They may not know of the unhappiness of the other spouse.

• She or he may not know of an affair prompting the spouse to seek a divorce.

• She or he may have a genuine belief in the possibility of the marriage continuing with the benefit of marital counselling.

• She or he may want to delay the divorce for the sake of the children including a key stage in their education. 

• She or he may lose out badly in the financial consequences if the final decree precedes the final financial order.  

These aspects are all stacked against a respondent in a no-fault system and they cannot delay or stop the no-fault divorce.

So, whilst the bill will end ‘the blame game’ it now gives the petitioner almost complete control because:

• They decide when to commence proceedings. 

• They file the papers at the court, very probably online and sometimes in haste after an argument due to the ease of online filing.

• They decide when to serve the respondent, specifically whether at the outset or towards the end of the 20-week period. 

• There is no obligation to serve divorce papers within any period of issuing them. They have to be served by the latest at the end of 20 weeks from when they were issued.

• So, unless served immediately, the respondent is in marital blissful ignorance. 

• The petitioner could remain in the family home, carrying on as normal in the knowledge that their divorce petition has been issued and their spouse is unaware of what is looming. 

• Towards the end of the 20 weeks they will have to notify the respondent of their intention to seek the first decree, which means telling them that four or five months earlier they issued a divorce petition against them.

Lack of notice has its drawbacks

In 2020 England needs no-fault divorce, however it needs to be fair to both parties.  Family lawyers can anticipate the upset, distress and anger this will cause to already broken families as the previous four months will be regarded by a respondent as a deceitful lie.  It could affect the willingness of parents to co-parenting their children as there will be immediate distrust.  There will be minimal chance of marital counselling and reconciliation.  It will badly affect opportunities to negotiate terms of any separation.  It will set back the chance of resolving financial implications. 

The Law Society has lobbied for these changes over the past nine months, seeking fair provisions for the respondent to the divorce and for the divorce petition to be served on the respondent at the start of the divorce rather than wait for (to start ) the 20 weeks’ time period. The Ministry of Justice has ignored this and have given preference to the petitioner. The House of Lords is urged to make these changes. So let’s wait and see!!

Emma Piff is a specialist family solicitor and Head of Family at Lawson-West Solicitors in Leicestershire. You can contact Emma Piff on epiff@lawson-west.co.uk or Tel: 0116 212 1086.

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