No Fault Divorce Reform will transform Family Law in England and Wales
The long-anticipated changes to the divorce laws of England and Wales have taken a step closer with the announcement of a new divorce law which reforms the existing grounds for divorce to be enacted by parliament as soon as there is sufficient parliamentary time to allow the bill to pass through the parliamentary system.
The new law will remove the need to hold one party as being at fault and there will be only one ground for divorce, that of irretrievable breakdown, the reason for which will not be outlined. The new procedure will require one person to declare that the marriage has irretrievably broken down and this will be followed by a period of six months to enable both parties to consider and reflect on the step that they are about to take; if there is no change of view by the couple divorcing the decree nisi will be granted followed by a decree absolute. There will be a provision for a joint application, should the couple prefer this option. There will no longer be the opportunity to contest a divorce. There will be no requirement to provide evidence of the collapse of the marriage.
Giambrone’s divorce lawyers anticipate a rise in cross-border divorces as the attraction of a simple speedy non-adversarial procedure coupled with the English courts generosity towards the financially weaker party when considering the financial settlements required will make the English courts extremely attractive. EU citizens who wish to divorce and have fulfilled the residency requirements to enable them to use the English courts would be very well advised to consider accessing the new divorce law when it is enacted.
Opinion is divided as to whether the proposed law is a “much-needed reform” removing the, often acrimonious factors in a divorce, or a licence for fecklessness where solemn oaths can be ignored on a whim with no challenge to the decision. In 2018, 118,000 people petitioned for divorce in England and Wales, with doubtless a considerable impact on a large number of individuals.
It is undeniable that when one party has to hold the other party to blame for the marital breakdown or wait years for a divorce this has frequently created hostility which has the capacity to impact on the children of a marriage and cause a rift that is impossible to repair. The main concerns regarding such a situation involve the potential damage an acrimonious divorce has on the children who can be badly affected by the bitter arguments put forward by their parents, as well as the fact that the situation repeatedly results in loss of contact with one parent as the ability to have a polite relationship between the couple dissipates.
However, reform to the divorce laws, in particular reforming the need for “fault” if one or both parties were not prepared to wait two years to legally be divided has been called for many times over the years since the last attempt to ease the path of divorcing couples 50 years ago. The new law is almost certainly a “last straw” reaction provoked by the unsuccessful attempt by Ms.Tini Owens to divorce her husband on the ground of unreasonable behaviour rather than wait five years to divorce him despite his unwillingness to divorce, which was frustrated due to the fact that Mr. Owens successfully resisted the divorce.
The proposed new “no fault” divorce law is welcomed as an attempt to remove the factors that create, often painful, difficulties for couples who are already undergoing a tough experience. The adversarial element that frequently invades divorce, particularly during the financial discussions, should be avoided at all costs and couples must be encouraged to consider the mediation process as a far less brutal way of settling how the associated matters relating to their divorce should be dealt with. Giambrone hopes that the new divorce law will achieve its objectives of the removal of blame and animosity from this taxing area of law.
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