Tag: no fault divorce

Divorce applications highest in a decade

Divorce applications reached their highest level in a decade in the first period after the introduction of ‘no-fault’ legislation.

Divorce laws were overhauled for the first time in 50 years on April 6. This enables married couples to divorce without needing to apportion blame for the breakdown.

The latest figures from the Ministry of Justice (MoJ) reveal there were 33,566 divorce applications in the three months April to June.

The number of applications was the highest since the first quarter of 2012 and an increase of 22% from the same period last year. Figures in the previous quarter compared to January – March in 2021 had fallen slightly. This suggests people were holding off divorcing until the new legislation came into effect.

The vast majority of the April-June applications (33,234) were made under the new law.

Joint applications for divorce

The law change is designed to help separating couples look to the future and focus on key practical decisions involving children or their finances.

The legislation also allows separating couples to file a joint application for divorce. 78% of the applications were from sole applicants and 22% from joint applicants, including those for the dissolution of civil partnership.

The MoJ data also shows there was a rise in the average length of proceedings for those divorcing under the old law,

The average time from petition date to receiving a decree nisi (conditional order) was 36 weeks, up 12 weeks on the same period in 2021.

And the average period from petition date to decree absolute (final order) was 56 weeks, up seven weeks from the same quarter in 2021.

Under the new law there’s a minimum 20 weeks between the start of proceedings and application for a conditional order. This provides a meaningful period of reflection and the chance to reconsider. Couples then have to wait a further six weeks before applying for a final order.

→ No fault divorce law – what’s changed?

‘No fault’ divorce law: What’s changed?           

‘No fault’ divorce comes into effect today and is being hailed as the biggest shift in the divorce law in half a century.

But what exactly has changed and how will the experience differ for separating partners?

This development ends the requirement for the divorcing partner to prove their marriage has broken down based on one of five facts – adultery, behaviour, two years separation (with their spouse’s consent), five years separation (without consent) and desertion.

Instead, only a statement of irretrievable breakdown will be needed.

It’s this change, removing the need for one party to be ‘blamed’ for the marriage break down, that has brought forward the term ‘no fault’ divorce.

Campaigners hope that taking blame out of the legal process will also remove some of the acrimony and conflict and shift the focus away from what went wrong, to what’s needed for the future.

Six months to final order

The new process will take six months before the separating couple can obtain a final divorce order. There’s a minimum 20 weeks between the start of proceedings and application for a conditional order. This provides couples with a meaningful period of reflection and the chance to reconsider. They then will have to wait a further six weeks before applying for a final order.

Another change the Divorce, Dissolution and Separation Act 2020 brings is more modern terminology. The person applying for the divorce will be called the applicant, instead of the petitioner. The decree nisi becomes the conditional order and the decree absolute will be the final order.

It will no longer be possible to contest a divorce, except on very limited grounds (such as whether the court has jurisdiction to conduct the proceedings).

Also under the April 6 change, both parties can jointly file for divorce, rather than solely one partner.

The new law is anticipated to remove some of the negativity and blame associated with divorce. However, it cannot take away the often tricky process of agreeing a divorce settlement between partners. The separating couple will still need to decide how to divide assets like the family home, savings and pensions. And, of course, making parenting arrangements for any children.

The new system is a change for everyone. Our advice remains that anyone thinking about ending their marriage should educate themselves about all potential possibilities, hurdles and outcomes. Seeking legal guidance at the earliest opportunity puts you in the strongest position to make those educated decisions.

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Not reading too much into divorce rate drop

Commentators and newspaper columnists have done their best to divine insight from the recently announced drop in divorce figures.

The truth is that, while the numbers are interesting, reading any long-term trends into them is much harder.

In 2020, there were 103,592 divorces granted in England and Wales, a decrease of 4.5% compared with 2019. That fall seems to have surprised many who thought that the many stresses of the pandemic, including that first lockdown in March and the months of uncertainty that followed, would drive up the numbers.

The reality is most relationships finished off by Covid would have struggled to reach a decree absolute by the end of that year. The ‘average’ divorce takes something like four to six months and the courts themselves were hit by restrictions and lockdown.

Only after we’ve seen the picture for the succeeding years may we gain a clearer understanding of what impact Covid has had on couples taking action to end their relationships. Even then there will be other factors that have to be taken into consideration.

The numbers released by the Office for National Statistics for 2020 included:
  • The majority of divorces were among opposite-sex couples, 98.9%.
  • There were 1,154 divorces among same-sex couples, increasing by 40.4% from 2019; of these, the majority continued to be accounted for by female same-sex divorces 71.3%.
  • Unreasonable behaviour was the most common reason for wives petitioning for divorce among opposite-sex couples, accounting for 47.4% of petitions.
  • For husbands, the most common reason for divorces was a two-year separation. This accounted for 34.7% of divorces followed by 33.8% for unreasonable behaviour.
  • For same-sex divorces, unreasonable behaviour was the most common reason for divorce in 2020 for both female and male couples. Unreasonable behaviour accounted for 55.2% of female divorces and 57.0% of male divorces.
  • The average (median) duration of marriage was 11.9 years for opposite-sex couples, a decrease from 12.4 years in 2019.
  • For same-sex divorces in 2020, the average (median) duration of marriage was 4.7 years for female couples and 5.4 years for male couples. (Divorce among same-sex couples has only been possible since 2015 following the introduction of same-sex marriages in March 2014.)
No fault divorce

Currently in England and Wales, those wishing to divorce need to prove the marriage has broken down and cannot be saved. This can be on the grounds of adultery, unreasonable behaviour, desertion, separation for two years (with partner’s consent to divorce) or separation for five years (without partner’s consent).

That’s all set to change from April 6, when so-called no-fault divorce is introduced. This will allow the dissolution of a marriage without the need to show wrongdoing by either party.

(Commentators have also surmised this may have played a part in 2020’s divorce rate drop. Separating couples who did not want to have to prove fault may have waited for the legislation to come in. It had been set for introduction in autumn 2021 but was delayed.)

We wait to see how exactly the new system works. Our advice would always be to seek professional legal advice at the earliest opportunity if thinking about divorce or separation.

It is always important to be aware of all the options and implications. That way informed decisions can be taken about important matters such as family, finances and relationships.

‘No-fault’ divorce law passed – but not here yet

Separating couples wanting to take advantage of the changes brought by ‘no-fault’ divorce will have to wait some time yet.

Supporters say ‘no-fault’ divorce will reduce conflict. Neither party will have to point the finger blaming the other for the breakdown of the marriage. It is hoped this will allow couples to focus on any children and financial issues.

The Divorce, Dissolution and Separation Bill successfully made its way through Parliament and received Royal Assent in June.

But, even so, Lord Chancellor Robert Buckland said the reforms will not come into force straight away as ‘time needs to be allowed for careful implementation’.

He added at this stage, that meant working towards an autumn 2021 implementation.

So, in the meantime, the current law remains in place.

What will the changes mean?

The new law will allow couples to divorce when either one or both parties provide a sworn statement that the marriage has broken down irretrievably. The statement will then be followed by a minimum period of six months before the divorce can be finalised.

The law will:

  • Remove the need to prove adultery, unreasonable behaviour, desertion, two years separation (if the other party consents to a divorce) or five years separation (where there is no consent). Hence, ‘no-fault’ divorce.
  • Remove the possibility of one of the couple contesting the divorce.
  • Ensure language is in plain English, such as replacing ‘decree nisi’ with conditional order and ‘decree absolute’ with final order.
Is it worth waiting for the law to change before getting divorced?

There is no firm date for the law change to come into effect. The Lord Chancellor described autumn 2021 as an ‘indicative timetable of introduction’.

It would be unwise to bet the house on it being in place in roughly 15 months’ time. This is the biggest shake-up of our divorce laws in 50 years and there are considerable administrative changes that will need to take place.

If you do want to hold on, perhaps to avoid having to attribute blame in the hope of limiting potential conflict with a partner, then you must be prepared to wait. But there is the risk that delay will have implications for issues such as your finances or the arrangements for any children.

If you need advice before then, please call our freephone helpline 0800 285 1413 or email info@merrick-solicitors.com. We’re good at talking family law.

We’ve previously written about the incoming law – No fault? Not always

Divorce law change one step closer

A law change to bring in ‘no fault’ divorce has moved a step closer.

MPs this week approved the bill at its second reading in the House of Commons. It will now undergo further scrutiny from a committee of MPs before being considered by peers in the House of Lords.

The Divorce, Dissolution and Separation Bill removes the need to find fault in order to start proceedings in England and Wales.

Justice Secretary David Gauke told the Commons that at present couples could not separate “if they have grown apart” unless they have the means to live apart for two years.

Rise in divorce rate

He also said a change in the law would help in situations where there was one abusive partner, but the other did not want to raise these issues in court for fear of the relationship further deteriorating.

What you need to know about divorce law changes

Mr Gauke said a rise in the divorce rate once the law was changed was inevitable because people have been holding off their separation, waiting for a legal change.

“So, the likelihood is there will be an increase because of that waiting list,” he said.

He added evidence from other countries suggested “once that initial spike has been dealt with… the divorce rate is unlikely to increase and it is likely to remain much the same.”

Mr Gauke added: “The Bill responds constructively to the keenly felt experience of people’s real lives. This is a Bill for anyone who agrees that the end of a relationship should be a time of reflection, and not of manufactured conflict.”

The proposed changes follow the Supreme Court’s rejection of a woman’s appeal for divorce after her husband refused to agree.

Tini Owens wanted to divorce her husband of 40 years, on the grounds that she was unhappy with his behaviour. But her husband Hugh refused to agree to it and the Supreme Court unanimously rejected her appeal. It meant the couple must remain married until 2020.

No fault? Not always

MP Fiona Bruce was concerned that the removal of fault, without any opportunity to challenge, would mean that some who are genuinely wronged cannot put anything on record on what they feel about the reasons for the divorce.

Removal of fault sends out a signal

She said: “Sadly, I believe it will make divorce easier…because it will allow one party to walk away from the most important commitment they are likely to have made in their lifetime, without giving any reason at all and without their spouse being able meaningfully to object to their decision to do so.

“The removal of fault sends out a signal. I am particularly concerned about the signals sent out by the Bill to young people – that marriage can be unilaterally exited, on notice, by one party, with little if any recourse available to the party who has been left.

“I fear it signals that marriage need no longer be entered into with the intention of its being a lifelong commitment, as it is today – perhaps it will be signalled more as a time-limited arrangement that can be ended at will.

“It is interesting that, in my law firm, I am now hearing the phrase “My current partner” coming into usage.”

Protection for co-habitees

Wera Hobhouse urged the Government to also do more to improve the legal rights of co-habitees.

She said: “There is much more that can be done to bring our marriage laws into the 21st century.

“We must recognise that marriage and civil partnerships are not for everyone, and that young people who do get married are doing so later and later. Our legal system needs to catch up with society, in which millions of couples choose to live together without making a formal commitment.

“The Law Commission suggests granting essential but limited legal rights to couples who have lived together for at least three years. Such legislation would complement the new divorce, dissolution and separation laws.  I urge the Minister to take another look at that proposal.”

Verbatim report of this week’s second reading in the House of Commons

What you need to know about divorce law changes

The Government has announced its intention to overhaul the UK’s divorce laws, which have been in effect for almost half a century. Here’s a Q&A on what’s proposed.

What are the main changes?

In the future, divorcing spouses will only be required to make a statement that the marriage has irretrievably broken down. This is instead of the situation now where evidence has to be provided on behaviour or separation and the court rule on whether it’s satisfied the marriage has broken down irretrievably.

Why are the changes being introduced?

The laws were described as archaic and outdated by campaigners. They do not believe a spouse should have to prove someone is to blame for the marriage irretrievably breaking down. The belief is that often couples simply grow apart and they should be allowed to separate through a ‘no fault’ divorce.

What are seen as the major advantages?

Reformers are most concerned with how divorce can affect children. The current system leaves parting couples to apportion blame, often resulting in increased animosity and tension. This can not only impact children but also make it harder for ex-partners to develop positive co-parenting relationships.

Will a partner still be able to defend a divorce application?

No. Ministers have decided that as it takes both spouses to save a marriage, allowing one to contest a divorce is of no use. The Ministry of Justice said the practice should be scrapped as it can be misused by abusers to continue coercive and controlling behaviour.

Will getting divorced be a quick process?

A minimum timeframe of six months from petition to a divorce being finalised will be introduced. The current two-step legal process, known as decree nisi (a court order stating when the marriage will end) and decree absolute (when the marriage legally ends), will stay in place.
However, it will take a minimum of 20 weeks to go from the petition stage to decree nisi and six weeks from there to decree absolute.
At the end of this period the applicant will have to affirm their decision to seek a divorce.

Why has the Government acted now?

It said it would review the laws following the high-profile case of Tini Owens, who the courts ruled would have to stay married until 2020 because her complaints about her husband’s conduct were found not to amount to unreasonable behaviour.
The Government carried out a 12-week consultation last year, receiving more than 3,000 pieces of evidence.

When will the changes come into effect?

Not just yet. The Government has said it will introduce a bill just as soon as the Parliamentary timetable allows. Many have interpreted this as Brexit having an adverse impact on the Government’s time for other business.

What about civil partnerships?

Parallel changes will be made to the law allowing the dissolution of a civil partnership. Currently, civil partnerships of more than one year must also be proven to have irretrievably broken down.

Read more: Not everyone agrees that all the changes are for the better.


Divorce law consultation needs real families

A consultation is now under way on proposals to change Britain’s outdated divorce law.

The government wants to end the ‘blame game’ for separating couples and reduce unnecessary conflict in the divorce process.

At present, divorcing couples are forced into blaming each other for the marriage breakdown. They must cite unreasonable behaviour, adultery or desertion on the part of their spouse, unless they have been separated for a minimum of two years. If the divorce is opposed, then couples currently must wait five years before a divorce is granted.

Critics say the need for one party to be blamed for the breakdown of the relationship creates additional tensions, at an already stressful time for couples and any children affected.

Demands for change have increased since the Supreme Court ruled in July that Mrs Tini Owens should be prevented from divorcing her husband, until five years had elapsed. This was despite living apart from Hugh Owens since 2015.

No fault divorce

The most eye-catching aspect of the new proposals is the introduction of a new notification process which would remove the opportunity for the other spouse to contest divorce. This is the reason the change is referred to as ‘no fault divorce’.

Other proposals in the consultation include:

  • Retaining the irretrievable breakdown of a marriage as the sole ground for divorce.
  • Removing the need to show evidence of the other spouse’s conduct, or a period of living apart.
  • Introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce.
  • Testing a six-month minimum timeframe between the two stages of divorce. This would give couples the stability to plan as well as to consider the implications of the decision.

Introducing the consultation, Justice Secretary David Gauke said: “When a marriage has irretrievably broken down, the law should not frustrate achieving better outcomes, especially for children.

Justice Secretary David Gauke on divorce law consultation

“That is why we are consulting on the detail of our reform proposal, so that a revised legal process can help people find greater stability to consider the implications of the decision to divorce and help them to reach agreement about arrangements for the future.

“Last year, nearly 110,000 couples divorced, all of them constrained by a requirement in place for nearly half a century. The damaging effects of this requirement are not always apparent to people who have not themselves been affected by divorce.”

Merrick view

Merrick principal Amanda Merrick said: “It has long been argued that our divorce laws are no longer fit for purpose and overdue for reform. What people have now is an opportunity to put forward views on how we move to something better.

“In particular, I really hope that those who have been through the process make their views known. Having been divorced with the law as it currently stands, they are uniquely placed to give testament to what works and what needs to change.”

Have your say in the consultation

Divorce facts

Only about 2% of respondents contest the petitioner’s decision to seek a divorce. Of these, only a handful go on to defend the divorce at a court hearing.

At present, six weeks and a day must elapse before a decree nisi can be made absolute. In practice divorces take much longer to go through.

In 2017, behaviour accounted for nearly half of all petitions (46.8%, or 47.3% when combined with adultery).

Last year almost 110,000 people petitioned for divorce in England and Wales.

The consultation closes on 10 December 2018.

We’ve written about no fault divorce previously.

Divorce law reforms must be for the better

Divorce law reform: Supreme Court 2

Supreme Court’s decision to deny Tini Owens a divorce has understandably hit a nerve with many.

Five judges of the UK’s highest court this week upheld rulings by the Family Court and the Court of Appeal that she must stay married despite her complaint that the marriage is loveless and has broken down.

Divorce law reform

The case has provoked widespread comment about the need for divorce law reform and a move to ‘no fault divorce’.  Many in the legal profession have described it as a missed opportunity.

The Supreme Court, however, was never likely to grant the divorce. As its president Baroness Hale had said previously, the court is there to interpret and apply laws made by Parliament, not to change those laws.

Nevertheless, Lady Hale said she found the Owens divorce case “very troubling”.

She said “expectations” of whether it was “reasonable to expect one spouse to continue to live with the other, in the light of the way the latter has behaved” had changed over the past half century.

“The social norm which has changed most obviously is the recognition that marriage is a partnership of equal,” she said.

Question for Parliament

In delivering the judgement, Lord Wilson, said the justices had ruled against Mrs Owens “with reluctance”.

He said the “question for Parliament” was whether the law governing entitlement to divorce remained “satisfactory”.

So there we have the ball once again passed squarely back to the law makers.

Will they now find the resolve and time to re-evaluate laws that have stood for half a century?

What must be ensured amid the clamour of this particular case is that any changes improve the system and are not simply a knee jerk reaction.

No one could argue that what we have now is perfect.

And some have already said that what we may see next are instances where divorcing parties feel they must embellish grounds for divorce to ensure that applications proceed without issues as in the Owens’ case. That would not be good for anyone.

Under current law there is only one legal ground for divorce, that the marriage has irretrievably broken down. The person who starts the proceedings must prove this by establishing one of five facts: adultery, unreasonable behaviour, desertion, two years separation with the other party’s consent, five years separation (no consent required).

Hence, Mrs Owens will have her divorce five years post-separation in 2020. In the meantime changes in society rightly mean there is no stigma associated with her separated status.

So how would replacing this with a ‘no fault’ option improve Mrs Owens’ lot? Surely Mr Owens should still have a say…it’s his marriage too.

And what of the cathartic experience of laying blame; such an acknowledgement can be a powerful part of the healing process for some.

Can ‘one size fits all’ work?

Is society at a point where it is appropriate for one party to turn their back on a marriage because they have decided it’s no longer for them. Are we ready to dispense with the notion of  ‘for better or worse’; the principle of commitment?

None of this is intended to minimise the angst felt by Mrs Owens, or anyone else who sadly finds themselves in a similar situation. But given that no two relationships are the same can a “one size fits all” approach to divorce, really work?

The complex nature of relationships means that every couple’s breakdown brings with it its own challenges.

In asking Parliament to move us away from something imperfect and ripe for reform this should not be forgotten.

We’ve previously written about no fault divorce here.


Five thoughts on ‘no fault divorce’

The highest court in the land – the Supreme Court – is considering its judgment in the case of Owens v Owens.

This high-profile and long-running case has provoked huge debate as it raises important questions about our divorce laws. Many in the legal profession believe the law is out of step with modern life and needs reforming.

In England and Wales since the 1970s, there is only one legal ground for divorce, which is that the marriage has irretrievably broken down.

The person who starts the proceedings must prove this by establishing one of five facts: adultery, unreasonable behaviour, desertion, two years separation with the other party’s consent, five years separation (no consent required).

Mrs Owens’ divorce petition has been contested by her husband – something that happens in only a small percentage of cases. The High Court and the Court of Appeal have rejected Mrs Owens’ claims. She has appealed to the Supreme Court in the hope of getting the divorce she wants.

Campaigners have highlighted the Owens case as proof the system needs to be changed. Otherwise, people in similar situations can find themselves trapped in a marriage they no longer wish to be in.

In approximately 60% of cases, the system relies on one party to blame the other for the marriage failure. Many have argued that it is time for ‘no fault divorce’.

Campaigners argue that marriages sometimes just run their course with no one party any more to blame than the other. And surely no one should be forced to stay in a marriage when they are unhappy?

The Supreme Court will deliver its verdict later in the year.

In the meantime, here are five points raised by the Owens case and the much talked of ‘no fault’ divorces.

Unnecessary conflict

Under the current system, the requirement to cite adultery or unreasonable behaviour can provoke unnecessary conflict in proceedings. Waiting two years isn’t always the best option when there are financial issues to be resolved too.
It may be that the marriage has just run its course. But unless the parties are prepared to wait the only option is for one to make allegations against the other. While in some cases this may seem like a means to an end, it frequently soon escalates when written allegations against a partner are prepared for submission to court.  Many practitioners argue the system should move away from the confrontational, particularly if there are children.

The current system is hypocritical

Sir James Munby, when President of the Family Division, denounced the current law as “based on hypocrisy and lack of intellectual honesty”.
After ruling on Owens, he said couples must engage in “consensual, collusive, manipulation” of the law to gain a divorce.
This led to concern amongst family lawyers that the ruling would lead to couples making more lurid allegations against each other to ensure a divorce was granted. Research published last year by the Nuffield Foundation showed our divorce laws incentivise people to exaggerate claims of unreasonable behaviour or adultery to get a quicker divorce.

No fault divorce

Sir James Munby said divorce law was based on hypocrisy

No fault divorce: Conciliation isn’t for everyone

For all the talk in the media and amongst the profession no-one yet knows what ‘no-fault’ divorce really means or how it will work.  Is it to be an addition to our existing laws or a wholesale replacement? And what would that mean for those cases in which there has been conduct relevant also to the associated financial or children issues?  Under current legislation the decree nisi acts as a finding of fact on the contents of the petition.

Man has been laying blame since the beginning of time. Adam blamed Eve and God for his fall from the Garden of Eden and Eve in turn looked to the serpent for encouraging her to take the forbidden fruit.
Conciliation isn’t for everyone and in some cases the blame game can provide its own form of catharsis. A blanket removal of the existing grounds for divorce may not provide the panacea that is expected.

Many in unhappy marriages look to divorce to give them a fresh start in life. They require the cathartic experience of being able to say why exactly their marriage failed. And, to put it bluntly, they want to name the party they believe was to blame. And also recite the poor treatment that resulted in their marriage irretrievably breaking down.  To deny that experience could serve to cause more conflict (not less) when dealing with associated financial or children issues.

The Family Court is entrusted with a very wide discretion for a reason; because no one solution fits all. It’s a principle that perhaps should not be overlooked when deciding the part no fault divorce should play in modern day relationship breakdown.

The Supreme Court doesn’t make new laws

Those looking for a ruling in Owens v Owens to lead directly to a law change are very likely to be disappointed.
The Supreme Court’s president, Baroness Hale, has already said: “It is not the job of the courts to legislate – only Parliament can do that. Our job is to interpret law that Parliament has given us.”

Government action is therefore needed

Parliamentarians should be watching what is happening and getting ready to step in. Divorce law in England and Wales is out of step with our nearest neighbours Scotland, most other countries in Europe, and North America.
Despite numerous calls to change the law, successive governments have failed to do so. An attempt to introduce no-fault divorces in 1996 failed after it was described by the Government as unworkable. A Private Members Bill in 2015 failed to win backing, though Baroness Butler-Sloss has signalled her intention to try again.

Government inaction is possibly because they don’t want divorce to look too easy. But in the real world couples do split up. Surely there should be a mechanism to make sure, where both parties are agreed, unnecessary obstacles aren’t placed in the way, causing additional suffering for all concerned?