Grace Clark of Devon ‘no-fault’ divorce solicitors, Slee Blackwell, summarises the new legal framework for divorce
The new Act
The Pre-Divorce, Dissolution and Separation Act 2020 has reshaped the way divorce proceedings in England and Wales play out. Under the previous legislation, the court had to be satisfied that one or more of the following ‘facts’ were satisfied:
- that the respondent had committed adultery and the petitioner found it intolerable to live with the respondent;
- that the respondent had behaved in such a way that the petitioner could not reasonably have been expected to live with the respondent;
- that the respondent had deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
- that the parties to the marriage had lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consented to a decree being granted; or
- that the parties to the marriage had lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
People criticised the law because it often required the respondent (the party the allegations were being made against) to have been at fault for the breakdown of the marriage. This led to divorce proceedings becoming hostile and combative, with the result that important matters, such as the welfare of children, were not necessarily the main focus of attention. The courts were also required to investigate the allegations, meaning that the personal lives of those seeking a divorce were put on display, adding further stress to an already difficult situation.
Another big problem with the old legal framework was that, although rare, a respondent could successfully refute the allegations, resulting in the court not granting a divorce. This happened in the case of Owens v Owens which made its way to the Supreme Court. The court agreed that the petitioner had failed to satisfy any of the above ‘facts’ and refused to grant the divorce order. Mrs Owens was therefore forced to wait years for another opportunity to present a petition for divorce.
How does the new law work?
The new legislation has been hailed as a much-needed change by the Law Society and many family law practitioners. The new law is very simple: one or both parties make a divorce application to the court, accompanied by a statement that the marriage has ‘broken down irretrievably’. The court will take that statement to be conclusive and make a conditional order. The courts will then ask the applicant(s) after 20 weeks (the so-called ‘cooling off period’) if they wish to proceed with the application. If they do, then the court will make a divorce order.
The hope is that the focus and energy formerly spent by parties dragging each other through the mud, can now be used to settle the important matters that accompany divorce proceeding. Many solicitors also hope and expect the new law to make divorce proceedings far more amicable and less stressful, with greater use of effective mediation and savings on court time and legal fees.
How we can help
If you find that your marriage is just not working and you would like some legal advice from Devon ‘no-fault’ divorce solicitors, Slee Blackwell, as to how to proceed, then please feel free to give us a call and speak with one of our family law specialists. Call 0333 888 0404 or send an email to us at [email protected].