Divorce can be a long, challenging and emotionally charged process. As a result, much needed change is taking place to implement no fault divorce, limit blame and reduce bad feeling that is often associated with the break up of a marriage. Existing laws are being reformed and these changes are the biggest that have taken place in the past fifty years.
The divorce rules that are currently in place require one person to be blamed or considered to be ‘at fault’. There are three grounds under which a partner is deemed to be ‘at fault’ including adultery, desertion and unreasonable behaviour. Under the new divorce laws, these grounds have been abolished and replaced with a new term known as ‘irretrievable breakdown’ or no fault divorce.
This will become the main reason for a divorce and it just needs for one partner to state that the marriage is over. In the current legislation one partner can contest the divorce but this legal right will no longer apply.
These radical new changes have been proposed by David Gauke the Justice Secretary and they are a result of many years of campaigning from judges and family solicitors.
There has long been a requirement for the idea of fault to be completely removed from divorce law because in what is often a fraught process, placing blame or saying that someone is at fault can further increase and exacerbate conflict. Furthermore, insisting on someone is in effect ‘blamed’ for the divorce not only undermines relationships particularly with children but it can significantly reduce the chances of an amicable separation taking place.
As well as the strain this can create for couples looking to divorce, it can also place incredible pressure on families, creating an upsetting environment and unsettling atmosphere for children.
While there have been many advocates of change to divorce laws and people who have supported these reforms, there have also been critics. Concerns have been raised over ‘divorce on demand’ as opponents say that the new rules could result in more marriages breaking down or couples taking the ‘easy route’ out of the marriage rather than working things out.
Existing divorce law which originates in 1969 states that there are five main grounds for divorce:
- Under the first two grounds, the couple does not have to specify that either party was at fault. Instead the couple can apply for a divorce if they have been separated for two years or if both parties agree, after five years if one partner decides that the marriage should end, and they would like a divorce.
- The final three grounds for divorce fall under the ‘at fault’ category. This type of divorce is quicker and therefore more common, but it can cause serious problems and create areas of great contention. The main grounds for an ‘at fault divorce’ include adultery, unreasonable behaviour or desertion. The final reason, desertion is rarely used.
Cooling off Period Before Divorce
With the new divorce laws, a divorce can take place if one partner makes a formal declaration to state that the marriage has broken down and there is no chance of the marriage being repaired. However, a cooling off period of six months will apply.
This will be put in place to allow time for each party to reflect and also give them the opportunity to change their mind before the divorce becomes final and official. We all know that situations can change, people can change, and talks can resolve issues which can bring the couple back together stronger than ever before.
Allowing a six month period enables couples to work through their differences and decide whether a divorce is really what they want before it becomes final and legally binding.
Under the new legislation, for the very first time, couples can submit a joint application to request a divorce. The process will stay very much the same, involving the two stages that exist in the current divorce law,:
- the decree nisi
- the decree absolute.
As the right of contesting a divorce will no longer apply, it is not possible for a partner who would like to save the marriage to block proceedings.
Low Divorce Rates
Although divorce rates are at their lowest for more than four decades, warnings have been issued by Whitehall about the expected rise in applications for divorce not just in the immediate months after the changes but over the long term.
Others have expressed concern over couples taking the easy route rather than working through their problems and rescuing the marriage.
However, with the introduction of this new legislation it can alleviate the pressure on families and particularly reduce the detrimental impact it can have on children. Making the process easier and more amicable means that the couple can focus on what’s important; the children and complete the process quickly and easily making the whole process less stressful for everyone involved.
At the moment, a couple must wait a year after they have been married before they can request a divorce by filing a divorce petition. Once this petition has been filed, the divorce can be finalised in just a few months. Typically, a divorce takes a year to complete.
Under the new legislation, couples will still have to wait until they have been married a year before they can request a divorce. This is when the new minimum ‘cooling off’ period of six months is applied between the divorce petition being filed and the divorce being finalised.
Ultimately divorce on demand is designed to make the process of divorce less stressful. Each partner in the couple and the children will be able to participate in a separation that isn’t as tense and fraught as it currently is, requiring one partner to be ‘blamed’ for the divorce or deemed to be ‘at fault’.
Divorce is never a pleasant experience and is often the last resort for couples who cannot resolve their differences, but the new legislation is there to make the process a little less challenging for everyone involved.
About the Author
This article was written by a member of the Expert Answers team and posted by Lloyd Barrett, Admin & Customer Services Manager for online advice service Expert Answers. Expert Answers provides legal advice to users in the UK who post a question on their secure platform.