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  • Writer's pictureNeil McNab

'No-fault' divorce one step closer

For decades now, one of the more frustrating features of divorce has been the unfortunate inability to petition for divorce without blaming the other spouse, in circumstances where you have not lived separate and apart for a period of at least two years. If you wish to divorce before two years have elapsed, as is the case in the vast majority of applications, you will need to rely on the other's adultery (if relevant) or allege they have behaved unreasonably.

As very few people are in a position to wait at least two years, it is left to the most skilled family lawyers to be more creative and seek only to incorporate anodyne allegations in an unreasonable behaviour petition, in an attempt to minimise any conflict and inflammatory language. This is particularly the case when the separation itself has been amicable. It is, however, an imperfect solution, especially as the allegations must still be sufficiently serious to convince a judge that the marriage has broken down irretrievably.

The momentum for change has been gathering pace, particularly in recent years, for legislation to be introduced that avoids the need to rely on one of these fault-based facts. That time for change has now finally arrived. In what will be welcomed by the vast majority within the profession, and for divorce laws as a whole, the Divorce, Dissolution and Separation Bill received Royal Assent in June 2020.

The most significant change will mean that the need to blame the other for the breakdown of the marriage can now be avoided altogether, with it instead being possible simply to state that the marriage has broken down irretrievably. Of additional benefit, it will be possible for both spouses to make this statement jointly, something which has not been possible before.

This development will be keenly received by professionals who, like me, have been hoping for change. All too often the tone set in the divorce petition, which could and should have been avoided altogether, has had a deleterious and long-lasting effect on the various other matters that need resolving, such as issues concerning children or resolving financial claims. What's crucial is to minimise the risk of conflict within any divorce, rather than exacerbate it. The latter course of action can more often than not lead to unnecessary and inflated legal costs, with little having actually been gained from that process. With this development, it is hoped that a more dignified, forward-thinking and non-confrontational approach will be adopted instead.

It is expected that these changes will come into effect at some point in 2021.

The information contained in this post is for general guidance only, and does not constitute legal advice. For bespoke and tailored advice in relation to your personal circumstances, please do not hesitate to get in touch.


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