For starters, it is widely accepted, especially among family law professionals, that the divorce law needs to be updated. Up until now, when a couple is going through a divorce, one party is always blaming the other party for the separation, and this has always made the divorce super confrontational. This not only means that there is no privacy guaranteed on the matter, but it also complicates financial settlements. So, when the UK government announced its intentions to introduce no-fault divorce law, it was welcomed across the board.
How exactly is the current divorce system?
Basically, under the current law, the petitioner (one of the spouses) initiates the process of filing for divorce, where he or she makes accusations regarding the other spouse’s conduct (largely seen as the basis for the divorce). Some of the reasons largely cited include adultery, unreasonable behaviour, and desertion. And if any of these three reasons aren’t proven beyond any reasonable doubt, then the couple must have lived or must live, apart for at least two to five years, which is referred to as the ‘separation period’ in legal terms, for the marriage to be legally dissolved. Remember, the court must be convinced that the marriage has irretrievably broken down, to the extent where it cannot be saved.
What are the main changes the No-fault divorce seeks to introduce?
Now that we know what the current law looks like, let’s take a look at what the new reforms will look like. So, here is a breakdown of the new law:
Divorce can be granted without the parties blaming each other – one of the most crucial aspects of the no-fault divorce reform is the removal of the blame game from the divorce process. So, the UK parliament is proposing to have the divorcing couple dissolve their broken marriage, without them having to cite reasons for the divorce, as is currently required. Basically, what this means is that when a couple decides and agrees to get a divorce, and it’s amicable and uncontested, there won’t be any need for the petitioner to blame the other spouse for the marriage breakdown. This would certainly be such a reprieve for divorcing couples in the UK.
Couples can now make a joint divorce application – under the current law as is, it is required that one party initiate divorce proceedings against the other spouse. In the legal realm, the spouse who initiates is referred to as the petitioner, while the spouse being served is known as the respondent. But now, under the new no-fault divorce law, both spouses will be able to apply for the divorce jointly
Some terminologies used in the divorce law will be updated – some of the terminologies used to describe the divorce process have been deemed as outdated, and the new reforms seek to update them. For instance, under the current law, the spouse applying for the divorce is referred to as petitioner, but under the no-fault law, he or she will be called the applicant. Also, the decree nisi will be changed to become the conditional order, while the decree absolute will become the Final Order.
Minimum of 20 weeks cooling off period – the no-fault divorce law introduces a minimum period of 20 weeks between the application and the conditional order. Basically, there were some concerns that the new reforms might make the divorce too quick, that couples see it as the easier option rather than trying to save their marriage. And because of that, the parliament saw it fit to introduce this period to give the couples an opportunity to reflect on their marriage, try to work through their differences, which might, in the end, prevent the divorce altogether. On top of that, there will be an additional 6 weeks period between the conditional order and the final order. The new reforms also allow the couples to enter into a separation agreement, which will not necessarily end the marriage, but will outline the terms of the separation.
Divorces will no longer be contestable – under the current law, when the petitioner files for a divorce, and as per the requirement, cites the reasons for the divorce – probably the spouse’s behaviour, or even a period of separation – then the other spouse can contest it. This drags the divorce process, and can even become super messy. But under the new law, this option will be scrapped.
What happens to financial settlements under the new law?
Financial settlements are, for sure, one of the most contentious issues during a divorce, along with co-parenting of the kids. Now, when it comes to assets and finances, the new law doesn’t have any legal application in negotiations. However, given that the new law seeks to remove some heat from the divorce process, by removing the blame game, it will, in turn, facilitate fast financial settlements. As a matter of fact, there are some moves being proposed to bring some much-needed clarity on the division of assets, where many do believe that the fact that there is no fixed formula for splitting the assets, gives judges too much discretion. This means that you will not know what the court will order in its final decision, and this might act as a deterrent to spouses to negotiate, particularly when it is in their best interest to do so.
So, what are some of the reforms being proposed? They are as follows:
- Making the starting point for the division of the matrimonial assets 50/50. These are the assets that the spouses acquired during the marriage. With that already in place, the court will now have an easier time reaching a fair solution. The judge will consider any agreement between the spouses when it comes to the ownership of certain properties; the need of the kids; and the dissipation of assets when giving their decision.
- All the assets that were acquired before the marriage would be excluded
- Maintenance payments will only be paid for five years
- Any inheritance received during the marriage should be excluded, or better yet, ring-fenced, and should only be considered if the needs of the other party justify its inclusion.
- For pre and post-nuptial agreements to be recognized by the statute.
The truth is, these proposals are not without some criticisms, especially when it comes to the idea of a ‘one-size-fits-all’ approach in financial settlements, considering that every couple’s financial foundations are different. Also, the five years of maintenance payments might seem unfair to some spouses, especially to the ones who did give up their careers to care for the kids.
What’s in it for victims of domestic abuse?
Oftentimes, you find spouses who have always been abused by their respective spouses but are unable to get out, fearing the super-long divorce, where the partner might even contest. So, they are basically trapped in their own marriages. But the good news is, as the new no-fault divorce law does make divorce processes incontestable, victims would now be able to get out with relative ease. In the past, there are some spouses who were taking advantage of the current laws by contesting the divorce application just to keep exercising coercive control of their victims. This is something the government was seeking to fix, so as to reduce domestic violence cases, and also provide a reprieve for victims looking to get out of the toxic environment.
What are some of the arguments made for and against no-fault divorce in the UK?
Supporting the reforms
As we stated earlier, with these reforms, as is the case with all other law reforms, there are those who are in support, and there are those who are against it. Those supporting the reforms such as the former Supreme Court President, Baroness Hale, who has, in fact, been advocating for the new law believe that being able to dissolve a marriage without holding the other person accountable would definitely ease some pain and stress endured by couples during divorces. And that the new law would make it easier for the divorcing spouses to agree on the terms of the divorce without having to go through a long-winded, and acrimonious legal court battle. Other people who support the reforms felt that the current law as it is, do actually cause the divorcing spouse’s relationship to deteriorate even further, especially given that one partner must go through the traumatising time when documenting evidence to include as the basis of the divorce.
Those opposed to it
For those opposed to the reforms, there are those who believe that by making the divorce process easy, many couples might always see it as the easy way out, which will in turn destroy the sanctity of the institution of marriage as a whole. They also argue that many couples might be getting married without actually getting to know each other, as they know that if it doesn’t work out, they can easily get a divorce. And as such, many of these couples won’t consider working on their relationships, as many would be going for a divorce as soon as difficulties arise. Lastly, some felt that spouses who commit adultery or behaved unreasonably should be held accountable during the divorce, and the fact that the new law suggests otherwise doesn’t sit well with them.
In conclusion, regardless of what one feels about the new no-fault divorce law in the UK, we can all agree that the current law was set way back in 1973 when the attitude towards marriage and divorce was very different. That’s no longer the case today, as society has changed so much. So, we can say that the reforms were actually very late and have been long-awaited by many in the family law profession. We believe that the current law is outdated in the sense that it is increasing acrimony and animosity in an already difficult time. When the marriage fails, there is no point in forcing the couple to remain together. They should be able to dissolve the marriage in an amicable and fair manner to both spouses and their children (if any).