The Divorce, Dissolution and Separation Act 2020 received royal assent on 25 June 2020. This is the most significant change in the divorce law since 1973.
Under the current law, being the Matrimonial Causes Act 1973, one can usually only obtain an immediate divorce by alleging fault on the part of the other spouse or civil partner.
Fault has to be established either by alleging adultery, unreasonable behaviour or desertion on the part of the other spouse.
Otherwise, a divorce can currently be obtained upon the couple having been separated for a minimum of two years and they both consenting to a divorce or, once the couple have been separated for five years, in which case there is no requirement for consent.
The requirement to show fault leads to hostility in the whole process. It means blame being placed on the other spouse.
Also, where the parties seek to divorce based on the unreasonable behaviour of the other, there is a requirement to set out the allegations in detail in the Court papers. This too leads to hostility.
The fact the current process creates hostility in itself impacts upon the negotiations surrounding arrangements for any children of the family and, settlement of the financial issues.
The new divorce law will sweep away the requirement to show fault in every case. It will also remove certain of the archaic terminology that surrounds the current divorce law.
All that will be required to secure a divorce will be a statement from either or both spouses to confirm the marriage has irretrievably broken down. That statement alone will be conclusive evidence that the marriage has irretrievably broken down and that a Divorce Order should be made. That Divorce Order will be either conditional or final. Gone will be the days where we talk of conditional Divorce Orders as Decree Nisi or final Divorce orders as Decree Absolute.
Another important element of the new law is the fact that it will now no longer be possible for divorces to be defended. This will remove the fear for some parties of being involved in costly and protracted proceedings that will create even more acrimony.
Whilst the new law has been enacted, the government is still to fix a date by when it will come into force. Originally planned to come into force in Autumn of 2021, the government have now indicated a delay to that with April 2022 being the likely time that it will come into effect.
Couples therefore now have the choice of either proceeding for a divorce under the current law if they wish to pursue the dissolution of their marriage now or, if they would prefer to avoid the requirement to show fault, wait until the new law is in place next year.
The coming into force of the new Act is a welcome step forward in removing a potentially acrimonious part of the divorce process as a whole.
