What is the no-fault divorce bill?
This bill has been many years in the making and was first introduced to Parliament on 13 Autumn 2015 under the 10-minute rule – where an MP has 10 minutes to make their case for a new bill.
Since then various stages have started and been completed but delays have been caused by two general elections, Brexit and Covid-19. On 17th June 2020, MPs debated the final stages of the no-fault divorce, dissolution and separation bill and it passed the third and final reading in Parliament. And many people who work in family law were excused for letting out a large sigh of relief.
On 25th June the bill was granted royal assent at 6.08pm – this was expected as no bill has been refused royal assent since 1708 (the Scottish Militia Bill for those interest in history). The divorce bill is now, finally, an act.
However, having waited for so long to get the bill passed, we are now informed that the implementation of the bill is unlikely to take place until Autumn 2021. This will cause more anxiety and stress to couples who want to divorce amicably, without having to give grounds that blame the other party. The delay is due to the amount of paperwork and process changes to be implemented and probably made more difficult by the current Covid-19 restrictions. Until then the current divorce laws will apply.
What are the current divorce laws?
Under the Matrimonial Causes Act 1973 there is only one reason for a divorce – the irretrievable breakdown of the marriage. There are then 5 grounds to prove this:
- Unreasonable behaviour
- Two-year separation with consent
- Five-year separation
Many people will ask for the divorce to be granted on ‘irreconcilable differences’ – but this is not a ground and as things stand if you wish to start the process for your divorce, then one of the above grounds will need to be used.
As there will be a further delay in implementing the no-fault divorce bill until Autumn 2021 at the earliest, we will look at each one of these grounds in turn:
Adultery – Used in 14% of cases
To show how out of date the existing legislation is, adultery can only be committed by having sexual intercourse with a member of the opposite sex. Adultery can be committed at any time during the marriage, even if you have separated many years ago. You cannot rely on your own adultery as a ground for divorce and you have to submit the petition for divorce within 6 months of finding out about your spouse’s adultery, otherwise you are said to have accepted the adultery.
You therefore need to show the court when you find out about the adultery and, if you know, when and where it took place. You also need to state whether the adultery is continuing.
Adultery has to be sexual intercourse with a person of the opposite sex. It is not:
- Kissing, petting or oral sex
- Texting, sexting or sending inappropriate pictures via email, WhatsApp or Instagram etc.
- Having an intimate relationship with someone else that does not involve sexual intercourse
- Webcamming, Live Streaming or any other virtual sex
- Having sex with someone of the same sex.
Whilst there is provision in law to name the other party in the divorce, this serves no purpose and would be frowned upon by the court. Most solicitors would not act for a petitioner who wished to include the other party in the proceedings. There may be exceptional circumstances for making such an application – but you would need to seek legal advice before doing this.
The Respondent will need to agree that they have committed adultery and if they don’t then it can be very difficult to prove.
It makes no difference to the financial or parenting arrangement you subsequently make and behaviour during a marriage is not rewarded or punished by the court (there are always extreme examples of when it might be). It would be normal to ask the Respondent to pay for the court fees (currently £550) – but they would not usually pay your own legal fees to resolve financial or parenting issues, which is where the higher costs are accrued.
Unreasonable behaviour – Used in 45% of cases
This is the most common ground used and, for accuracy, the petitioner needs to show that the Respondent has acted in such a way that they cannot be reasonably expected to live with them.
This ground involves citing five or six recent examples, preferably dated to show the court that the behaviour is unreasonable. This does not have to be a character assassination but the grounds do need to be serious enough for them to agree your divorce.
This is where firms such as Mediate UK, which deal mainly with amicable divorces or helping people reach agreement through mediation, has to go through the difficult process of listing the grounds – for a couple who just want to divorce without having to write nasty things about the other. It can also cause issues when a Respondent received a petition from the court with the grounds listed on it that they disagree with – and is one of the reasons why a draft petition should be agreed before submission to the court. It can be very scary seeing the grounds of your alleged unreasonable behaviour listed on an official court form and causes long delays whilst petitions are re-drafted and submitted to the court again.
Until the new no-blame divorce bill is bought into law and enacted, Mediate UK have to go through the façade of helping clients agree grounds. Some of the more memorable ones have been:
“Listening to Morrisey so much, if I don’t hear another Morrisey song again it will be too soon”
“Doing yoga all the time, for hours on end, day after day.”
“He is obsessed with sewing all the time. All his clothes have been re-sewn and he never wants to go out and do anything unless he can sew whilst he is there.”
In that last example the Respondent felt he was being stitched up! I apologise for that. Let’s move quickly on.
Similar to adultery, the unreasonable grounds used make no difference to the financial or parenting arrangements and most grounds are signed off to say the Respondent does not agree but will sign to enable the divorce to proceed.
The grounds are certainly not investigated by the court. They should however be unique to you as a couple and not just a ‘cut and paste’ exercise from a list of examples (which was what used to regularly take place).
Desertion – Used in 1% of cases
Many people ask to use this ground as they feel they have been ‘deserted’ by the spouse. But this is not the correct terminology. This ground would only be used rarely as you would need to show that the other party has literally ‘disappeared’ for 2 years – perhaps just packed up and left and never been seen or heard from since. It is very rarely used and some solicitors would suggest you do not use it as a ground as there are usually better options.
2 Year separation (with consent) – Used in 27% of cases
This one is the second most common used ground. It is when you have been living separately for two years and you both agree to the divorce. The court will allow some time during the 2-year period for you to try to get back together but you will need to show to the court the addresses you have both lived at during the period of separation.
Many couples will try to use this ground, if they have been living in the same property, but within separate rooms. This can cause problems with the court and you would usually need to show that you have lived separate lives, paid bills separately, not cooked or done the laundry for each other and not socialised together. It is up to the discretion of the court to agree this. It is safer to use this ground if you have been living at separate postal addresses. You do not need to provide evidence of council tax bills etc.
5 Year separation – Used in 13% of cases
This ground is the only one that can be used if the other party does not consent to the divorce or agree the grounds of adultery or unreasonable behaviour. You only need to show the court that you have lived apart for 5 years and you do not need to both agree to the divorce. In rare circumstances even this ground can be delayed if the Respondent can show the divorce will cause them to be financially worse off.
When will the no-fault divorce become law?
The no fault divorce has passed all it stages and completed royal assent. It is unlikely that the law will come into effect and people will be able to use the no fault divorce as the ground for divorce until Autumn 2021. And there is no guarantee on that timescale – it may well run into 2022.
Should I wait for a no-fault divorce?
That very much depends on your circumstances. There can be emotive reasons to wait until the no-fault divorce law is enacted. And if you are separating now and intending to wait for a two-year separation with consent, then you may as well wait for the no fault divorce to come into effect as this will probably come in sooner – except you do not have to worry about the other party signing their consent to the divorce.
At the time of writing this blog, Autumn 2021 is 16 months away. The nearer you get to this date – and if the no fault divorce timescale remains on track – then the advantage of waiting for the no fault divorce becomes greater. Waiting two to three months makes more sense than waiting 16 months.
However it is important to remember that whilst you are married, your assets are still viewed as an asset of the marriage. You may agree between you to backdate to when you separated, but your pensions, savings and property should be valued at the time of your divorce. In addition to this, in other countries where they have bought in a no-fault divorce, there has been a surge in the number of divorces submitted. This is because many people will be holding back their petition and, usually, if something is made easier, more people will do it.
There is currently a huge backlog with family courts and a timescale of 12-14 months is not unusual from petition to decree absolute, where a financial consent order is required. An increase in petitions following the no-fault divorce coming into effect will no doubt make a bad situation even worse.
What does the no-fault divorce bill change?
The bill primarily removes the need to show your spouse has been unreasonable, committed adultery or wait for 2 to 5 years to prove an irretrievable breakdown of the marriage.
In addition to this, the bill will:
- Allow one spouse to say that the marriage has irretrievably broken down without the risk of that assertion being challenged by their spouse
- Spouses can make a joint application for divorce
- The divorce can be finalised after 6 months. So the decree absolute can be applied for six months after the petition is made.
- Various parts of the terminology are being bought up to date
What are the advantages of the no-fault divorce bill?
- Domestic abusers will not be able to contest and ‘trap’ a spouse in an unwanted marriage for five years plus.
- It reduces conflict in a divorce situation, which is better for the families as a whole
- Parents are not having to blame each other so helps keep things amicable for their ongoing parenting relationship after divorce
- It better reflects modern society and views – not having to force one party to blame the other to get a divorce
- Reduces the compulsory time to wait for a divorce to 6 months – instead of having to wait 2 or 5 years. This allows couples to move on with their lives quicker and reduce ongoing conflict
- Allows amicable divorce companies, such as ourselves, to avoid the façade of asking clients to come up with grounds of behaviour considered unreasonable, instead they can both simply agree they want to file for a divorce together.
What can I do if I don’t want to wait for the no-fault divorce?
The answer to this very much depends on your spouse’s view on the divorce and the circumstances of the divorce:
- Your spouse has committed adultery which they admit and you found out about it in the last 6 months – File now for adultery
- You want to start the divorce process now – File on the grounds of unreasonable behaviour.
- You have been living apart for two years or more and you both agree to divorce – File now on the grounds of 2-year separation with consent
- You have been living apart for 5 or more years. File on the grounds of 5-year separation
- Your spouse will definitely contest the divorce – Wait for the no fault divorce to come into practise
- You both agree to the divorce but don’t want to blame each other or wait 2 years – Wait for the no fault divorce to be enacted.
Please note the above does not constitute legal advice! There may be many reasons to start the divorce proceedings now and you should seek legal advice from a solicitor or family lawyer, especially if there are complicated circumstances surrounding your divorce.
If I want to divorce now, do I have to say really horrible things about my spouse?
No. But you will need to show examples if you are using the grounds of unreasonable behaviour. The court will want to see ideally 5 or 6 recent grounds, ideally dated and they must be unreasonable enough for the court to consider the behaviour unreasonable enough to end the marriage.
As an amicable divorce service this is where, having agreed all the parenting and financial arrangements of their divorce, we then come unstuck as we go through the grounds and even though we are at pains to explain why we are doing this process, it just becomes painful for the couple involved.
There used to be a list of example grounds that circled round family law practitioners, but this was stopped a few years back, probably as the courts got annoyed at seeing the number of petitions submitted with identically worded grounds! Cutting and pasting is now very much frowned upon – the grounds need to be unique to the couple applying.
Having said that – and please do not cut and paste the grounds – there are some areas that are regularly used by our clients and I have covered these below. Did I mention, please do not cut and paste!
Example grounds of unreasonable behaviour
This is common where marriages have broken down. Remember the ground needs to be the unreasonable behaviour of the Respondent – so you cannot just say; “we don’t communicate anymore.”
You could however say:
“The Respondent does no communicate with me on any meaningful level. By way of example, in April 2020, I had received some distressing news and wanted to talk it through with the Respondent. The Respondent declined to even discuss the subject with me, leaving me feeling deflated and even worse than before.”
It is unusual for a couple who do not want to remain married to go out together with friends and social activities.
“The Respondent refuses to socialise with me and go out with my friends. Despite trying to encourage this and knowing the important role my friends have in my life, I am often forced to attend social functions on my own. By way of example, the Respondent declined to attend my best friend’s engagement party in February 2020, which caused both my friend and myself much upset.”
Often during the end of a marriage, the relationship with family members deteriorates.
“The Respondent is rude and antisocial towards my family. The Respondent will not attend family functions and was verbally aggressive to my mother on the phone. This causes a conflict between supporting my spouse and seeing my family and reduces the amount of time that my family wish to spend with us, which is upsetting for me and our children.”
We have had some interesting examples of clients obsessing over something to the detriment of their marriage (see the Morrisey and sewing examples above). For example:
“The Respondent is obsessed and fixated on West Ham Football Club to the detriment of our relationship. The Respondent spends every weekend following them around the country, often staying overnight. During the week the Respondent will spend their entire evening watching replays of West Ham football matches and talking to their friends about football. The Respondent spends all our family budget on buying West Ham memorabilia. The Respondent’s obsession with West Ham leave me feeling unloved and second best.”
The lack of intimacy in the relationship is often cited as a ground for unreasonable behaviour.
“The Respondent has not been physically intimate with me for many years. We sleep in separate rooms and despite my trying to initiate physical contact on several occasions, my advances are always spurned. By way of example on our wedding anniversary in Jun 2020, I suggested we spend the night in the same bed, but the Respondent declined, choosing again to spend the night in separate rooms. This left me feeling unloved and unwanted.”
You may argue as a couple and you could use such an argument as a ground.
“On 13th June 2020, The Respondent drank too much alcohol and started to argue with me about finances. The Respondent was shouting abuse at me and swearing, and belittling me in front of the children. The Respondent stood over me and was physically intimidating. This caused me to have to leave the house with the children for the evening as I was scared of the Respondent and his behaviour. This is an example of a regular occurrence with the Respondent often getting drunk and angry.”
When listing your grounds for unreasonable behaviour, keep in mind the purpose of the exercise. You are simply trying to show examples that the marriage has irretrievable broken down, due to the behaviour of your spouse being so unreasonable that you cannot be expected to remain married.
It is not a character-assassination, the grounds will not be investigated by the court (unless the divorce is challenged) and they make no difference to the financial or parenting arrangements. The Respondent is likely to write a sentence anyway, to the effect that they disagree with the grounds but are signing to allow the divorce to proceed. It is important to note that the grounds are not made public either. If you both agree to the divorce and want to do so amicably, it is helpful to agree the grounds for divorce before they are made into a petition.
If you are using a solicitor to manage the divorce, they should send the draft petition to the Respondent before sending to court, so that they can see what will be put as the grounds. There is usually some changes made at this stage, which costs more money to have changed, so if you are amicable, why not take time for you both to understand the process and agree who will petition and what examples will be used.
The joy of the no-fault divorce law being made into an Act, has been somewhat dampened by the fact it will take more than a year to come into effect. This leaves many people who were hoping to rely on this law for their divorce waiting another 16 months or more, until they can start the process.
It is important to recognise and credit the consistent and determined work carried out by Resolution over many years to get this bill to the stage it is today.
With backlogs at the courts and divorce times taking longer and longer, it could be almost 3 years before a divorce is finalised from now, if you choose to wait for the new law to come into effect – especially if you want a consent order sealed by the court.
If divorce is the right step for you, then you may just want to work together to come up with the grounds of unreasonable behaviour now and your divorce is likely to be fully completed before the new no fault divorce starts. Either way, please remember that the grounds for divorce are there to help you get through the legal process of no longer being married.
The things that really matter are the parenting and financial arrangements you can agree to allow you both to move on whilst prioritising any children of the relationship. In 5 years’ time the grounds you used for your divorce are unlikely to concern you. The wellbeing of your children and your ability to feed, clothe and house them most definitely will.
We offer a free 30-minute consultation to discuss all the options open to your specific circumstances.
Ali is the Managing Director of Divorce Ltd, a mediator, divorce negotiator and has previously been through a divorce himself. He has helped in over 3000 divorce or separations since 2010.