No-fault divorce heralds a new era for marriage breakdown

No-fault divorce heralds a new era for marriage breakdown

When it comes to divorce there has always been a ‘disconnect’ between what the law says and the reality. A court may say that, as a matter of law, a marriage has not irretrievably broken down, when the reality is that it clearly has.

Under the present divorce system, and indeed the systems that went before it, it has always been necessary to prove to the court that the marriage has irretrievably broken down, in order to get a divorce. Irretrievable breakdown is the only ground for divorce, and if you can’t prove it, you can’t get your divorce.

But of course what a court may say does not change the reality: if one party considers that the marriage has irretrievably broken down, then it has.

To put it another way, a marriage requires both parties to want it to continue. If one does not want it to continue, then it is over. There is nothing that a court, or indeed the law, can do to change that fact.

Now at long last all of that is about to change.

The law recognises the reality

On the 6^th of April a new system of no-fault divorce will be introduced in England and Wales. Under the system it will no longer be necessary to prove to the court that the marriage has irretrievably broken down in order to get a divorce.

A simple statement that the marriage has irretrievably broken down, by one or both of the parties, will suffice – the court must accept that statement as proof that the marriage has irretrievably broken down.

At last the law will have ‘caught up’ with the reality: one party says that the marriage is over, and therefore it is.

And it doesn’t matter what the other party may think – they will no longer have the opportunity to defend the divorce.

This has led to disquiet in some quarters. After all, if anyone has legal proceedings instituted against them then surely they should have the opportunity to defend those proceedings?

But divorce proceedings are of course quite unlike any other sort of legal proceedings. What a respondent may argue will simply make no difference, if the other party, who has applied for the divorce (the ‘applicant’), thinks the marriage is over.

Period for reflection

Now, of course we need to be sure that the applicant really wants the divorce. They may, of course, have second thoughts. Under the present system divorces are often defended with the sole aim of delaying matters, in the hope that the applicant (or ‘petitioner’, as they are currently called) has an opportunity to reconsider.

This is where the so-called ‘period for reflection’ comes in. Under the new system a period of twenty weeks must elapse from the commencement of the divorce proceedings before the applicant can apply for the conditional divorce order (the equivalent of the present decree nisi).

This twenty week period has been referred to as a ‘period for reflection’. The idea behind it is to give the applicant a chance to reflect upon whether they really want a divorce, before they can apply for the divorce to proceed.

So in short, a divorce can only happen under the new system if one or both parties want it and if, after a reflection period of twenty weeks, they confirm that they still want it.

A new era

All of this heralds a new era for marriage breakdown, when the law will no longer be able to ‘interfere’ with the reality of marriage breakdown. No longer will there be arguments over who was responsible for the marriage breakdown and, most importantly, no longer will the law force anyone to remain in a broken marriage.

That is not of course to say that the law will not be involved in decisions related to divorce. It will still be there to sort out arrangements for children and finances, if the parties are not able to agree them.

But perhaps without the divorce to argue over, there will be an improved chance that the parties may be able to reach agreement in relation to these important issues. If that happens then the future for those going through marriage breakdown could be better, in more ways than one.

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