Sound divorce guidance from Russell-Cooke

Introduction of no fault divorce

Will this bring an end to A Very British Scandal?

Many of us would have watched the recent “A Very British Scandal”, a historical mini-series following the notorious divorce of the Duke and Duchess of Argyll during the 1960s that was played out in public. Then fast forward to 2018 and the much-publicised case of Owens v Owens, which sparked headlines such as “Woman trapped in a loveless marriage” when the Supreme Court upheld the decision of the trial judge and the Court of Appeal, and refused a divorce to Mrs Owens based on her allegations of unreasonable behaviour, which Mr Owens contested. The court agreed that Mr Owens’ alleged behaviour towards his wife did not amount to behaviour so unreasonable that a reasonable person could not be expected to live with him. Expressing regret at not being able to grant Mrs Owens a divorce, the court urged Parliament to act.

Any marriage breakdown is a highly emotive time in any couple’s life. Currently, couples have to prove one of the five grounds for divorce, which could result in parties playing the ‘blame game’ and increasing conflict before the divorce process has begun. This leads to excessive involvement from solicitors and inevitably higher expenses to be paid in the long run towards legal costs. Following the decision in Owens v Owens there was even more concern about ensuring examples of behaviour were carefully crafted even though the reasons set-out in any divorce petition rarely make a difference to any financial matters that need to be agreed.

After years of campaigning for a change in the law, Parliament did act and on 25 June 2020 The Divorce, Dissolution and Separation Act 2020 received Royal Assent. It was hoped that it would come into force in Autumn 2021, but due to issues with the court service IT systems and the delays caused by the pandemic it was pushed back to 6 April 2022.

The Divorce, Dissolution and Separation Act 2020 will herald the biggest reform of divorce law in 50 years. It will mean that couples will no longer have to make allegations about their partner’s behaviour to obtain a divorce. This change will also apply to civil partnership dissolution. No fault divorce will become a reality in England and Wales.

Under the new law “irretrievable breakdown” will remain the sole reason for divorce but the need to give a reason will be removed. Couples will be able to make a joint application where they both agree the relationship has broken down or, alternatively, one person can apply. There will be a minimum of 20 weeks between issuing the petition and reaching the first stage of the divorce to give a period of reflection and the possibility of reconciliation or allow both parties time to agree practical arrangements surrounding the separation. Thereafter there will be an additional six week period before a final order is granted, severing the marriage or civil partnership. The ability to defend the divorce will also be removed save for very specific circumstances.

The language of divorce is also changing; ‘Decree Nisi’ will become a ‘Conditional Order’, ‘Decree Absolute’ will become a ‘Final Order’ and ‘petitioner’ (the person submitting the application) will become the ‘applicant’. These changes remove the legal jargon to make it more accessible for those wanting to achieve their divorce or dissolution without the assistance of lawyers in all areas of the process.

This long-awaited reform to the law will enable couples and their lawyers to focus on positive uncoupling rather than allocating blame, especially when parting of ways is a mutual decision and there are children involved. Children undoubtedly cope better with a separation when their parents are not in conflict and can see a joined-up approach to their parenting.

By removing the need to blame one party, it is intended that the new Act will help increase the likelihood of resolving divorce matters outside of court, providing a more efficient and collaborative approach between couples and solicitors, with less confrontation.

A good divorce lawyer will listen to what is important to you and work with your spouse and their lawyer, as well as other professionals you may need to support you along the way.

If you have any questions about the legal aspects raised above or would like help, please contact the Russell-Cooke family team. n

Miranda Green, partner Miranda.Green@russell-cooke.co.uk +44 (0)20 8541 2019 russell-cooke.co.uk

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