Claire Edgar

This week saw the introduction of no-fault divorce in England and Wales.

Previously in England and Wales, when a couple wished to divorce, one spouse had to either make accusations against the other of unreasonable behaviour or adultery or else face years of separation before being legally able to end their marriage. However, the introduction of the Divorce, Dissolution and Separation Act 2020 provides that one spouse can state that the marriage has irretrievably broken down with no further reasons being given for the breakdown.

The change in the law means that a court will be able to grant a conditional order after 20 weeks and a final order of divorce six weeks thereafter. The purpose of the 20-week wait is to allow the parties time to reflect and see if they are settled in their wish to proceed with a divorce and also to give them the opportunity to try to agree other arrangements between them about their children and finances.

This new law also provides couples with the option of jointly applying for the divorce and making a joint statement that the marriage has irretrievably broken down.

No-fault divorces

No-fault divorces have been welcomed by campaigners, many of whom are family lawyers, who have argued that the breakdown of a marriage is difficult enough and the previous legal requirement to prove one party was at fault invariably adds to the acrimony. The reality is that where one or both spouses decide that their marriage has broken down the law should permit a divorce to take place.

A no-fault divorce achieves the following:

• It allows a divorce to proceed on a less contentious basis.
• It avoids parties being trapped in a marriage.
• It avoids parties having to engage in contested divorce proceedings where the Court is has to determine who is responsible for the end of the marriage. Such Court cases are costly both financially and in terms of the increased acrimony which is inevitably caused.
• It prevents one spouse from vindictively contesting a divorce forcing their spouse to remain in an unhappy marriage.
• It reduces the potential for domestic abusers to challenge a divorce thereby using the Court system to further harm their victims.

While the law in England and Wales may have changed, we in Northern Ireland continue to have the same fault-based divorce. This means that for someone to get a divorce in Northern Ireland, they have to provide that their marriage as broken by reason of one of the following:

• Unreasonable behaviour
• Adultery
• Two years separation with the consent of the other spouse
• Desertion for two years
• Five years separation

Comment

The new law in England and Wales is a welcome change to how couples can divorce. It allows a divorce to proceed without unnecessary mudslinging at a time when emotions are already high and a couple are invariably experiencing hurt following the breakdown of their marriage.

These changes to the law take the focus away from blame and allow a couple to focus on making decisions about the arrangements for their children and how their finances should be dealt with. It also means that their children may be less likely to witness acrimony between their parents.

The fact that divorcing couples can apply for a divorce jointly also allows them to work together to move towards life post-divorce rather than looking back with recrimination.

While in Northern Ireland we continue to have to provide a fault-based ground for divorce or evidence the requisite period of separation, it is hoped that the important changes to divorce legislation in other parts of the UK will in time allow for changes to be considered in our own jurisdiction.

• Claire Edgar is a family law partner at Francis Hanna & Co Solicitors.