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No fault Divorce – what you need to know

The Divorce, Dissolution and Separation Bill is currently before the House of Lords, having had the second reading on 5 February 2020. The next stage is a line by line examination of the Bill, which will happen in the House of Lords on 3 March; but what does all this mean if you are contemplating ending your relationship?

Currently, if you want to proceed to divorce your spouse you must prove to the Court that your marriage has broken down irretrievably, and essentially there is no prospect of reconciling. To satisfy the Court you must set a basis on which your marriage has broken down. If you wish to divorce straight away then you must blame the other person, by either proving they committed adultery, or providing they have behaved unreasonably. If you do not want apportion blame, then you will have to wait for 2 years and proceed under separation with consent, as long as your spouse consents of course.

Under the proposed Bill, the process of divorce will be simplified. The need to produce evidence to prove a fact, will be removed with the provision of a statement of irretrievable breakdown of marriage. There is be an option for parties to make a joint statement.

In addition, the possibility of contesting a divorce will be removed. The court will take the statement of irretrievable breakdown as conclusive evidence and make a divorce order.

There will be a period of reflection between the petition being issued to when the divorce order, which is a conditional order, can be made. This is likely to be 20 weeks. This period ensures that both parties have time to consider their decision, particularly if the petition was issued ‘on the spur of the moment.’

The divorce order will not be made final under the proposed new law until the end of 6 weeks from which it was made. This does not alter the current position, in that once the decree nisi has been pronounced the petition must wait 6 weeks before applying for the decree to be made absolute. Often, financial matters will need resolving and any application for a final order will be dependent on a suitable financial settlement being reached.

The Bill if made into the Divorce, Dissolution and Separation Act 2020 is likely to be beneficial, especially to the children of the family as it removes blame and make the process more amicable between divorcing parents.

The role of a divorce lawyer will ultimately change with the introduction of the Act. However, if you are considering divorce under the current procedure, or you wait for the new regime the role of the lawyer remains important, as you will need advice on how finances are divided. When a marriage breakdown there are often assets, such as the family home, pensions, savings and other investments, and you will need advice on how these can be split. You may need to negotiate with your spouse to reach a settlement, and when a resolution is reached your solicitor will draft the legally binding financial consent order, which is ultimately has to be approved by the Court for it to be valid.

In addition, there may be disputes in relation to care arrangements for the children, and your solicitor will support and advise in reaching a suitable solution.

Ultimately, if agreements cannot be reached in financial matters or in relation to the children, you solicitor will prepare the appropriate applications to the Court and conduct proceedings on your behalf.

It is unclear when these changes will come into force. The earliest possible date may now be as late as early 2021. Once the Bill receives asset, there will be a need to review all the forms associated with the divorce procedure and that too will take time.

At the moment, nothing has changed and the divorce process remains the same, however, this does not mean that the process has to be acrimonious. Instructing a family lawyer, and remaining amicable can mean both parties can move on with their lives with little or no animosity.

Suzanne Kavanagh
Associate Solicitor


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