The Divorce, Dissolution And Separation Act 2020 - The Long Waited No-Fault Divorce

Published date23 July 2020
Subject MatterFamily and Matrimonial, Family Law, Divorce
Law FirmGiambrone & Partners
AuthorMs Daniel Theron

Royal assent was granted to the Divorce, Dissolution and Separation Bill on 25 June 2020 heralding the hotly anticipated "no-fault divorce". Whilst the Act is unlikely to come into force before Autumn 2021, at the earliest, it is considered to be the most welcome reform to divorce law for 50 years. The current law applying to divorce for opposite-sex couples requires one of the following grounds to be demonstrated before the court, whereas same-sex couples have the same grounds with the exception of adultery:

  • Desertion, where one of the parties has deserted the other for two years or more. This once popular ground is seldom used now.
  • Separation, either with consent after two years or without consent after five years. Separation after two years with the consent of both parties is the closest to "no-fault" available hitherto.
  • Adultery, often the most acrimonious and upsetting ground frequently leading to long drawn out court battles. It is used in only around 10% of divorce cases.
  • Unreasonable behaviour is the most frequently cited ground used in 46.3% of cases in 2018. Office of National Statistics (ONS)

The Divorce, Dissolution and Separation Act 2020 introduces several changes to divorce law, the major change is the new ground of no-fault. As the ground suggests there will be no requirement on the part of one party to demonstrate any type of behaviour that is deemed to be unacceptable and the reason for the marriage to have failed. The Act allows both parties to petition for divorce in a joint petition, something that has not been permitted in England and Wales, although it is allowed in other jurisdictions. The Act requires that the divorcing couple draft a statement of irretrievable breakdown which can be submitted jointly by both parties. There will no longer be the opportunity to contest the divorce. In order to remove the possibility of a "spur of the moment" decision, there will be a period of time for reflection, most likely 20 weeks, to ensure that both parties are definite that the decision is founded on a genuine desire to end the marriage. This is a considerable extension to the existing shorter time span of six weeks and one day between a decree nisi and decree absolute. The new Act abandons the terms decree nisi and decree absolute in exchange for "conditional divorce order" and "final divorce order" in the belief that the change of terminology is more understandable and will serve better to clarify the process of divorce.

Daniel Theron...

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