Your marriage has broken down irretrievably and petitioning for divorce is now at the forefront of your mind. So, what does the law say?
Currently in England and Wales, the law relating to divorce is governed by the Matrimonial Causes Act 1973 which states:
“A petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably”.
The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts:
- That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
- That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
- That the respondent has 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 have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;
- That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).
We can see from the criteria listed above that at present, the law in England and Wales requires parties to petition on a finding of fault or separation facts. This can result in one party blaming the other for the breakdown of the relationship. For example, take the ground of behaviour.
Often the respondent in divorce proceedings may feel aggrieved at the details listed in the particulars of behaviour therefore they contest; albeit, they accept the marriage has broken down irretrievably.
Thankfully, the blame game may soon be a thing of the past as we see the introduction of the Divorce, Dissolution and Separation Act 2020.
How will the grounds for divorce change under the new law?
The new law will require one spouse or both parties to make a joint statement of irretrievable breakdown of the marriage. As such, this will prohibit a spouse from unreasonably contesting the divorce as the courts will consider the statement of irretrievable breakdown as conclusive evidence. The court can exercise its power and make an order for the divorce.
Furthermore, the new law will allow both parties to make a joint application for divorce should they wish to do so. This is extremely beneficial for couples who are already separated.
When will the new law for divorce come into force?
After years of deliberation, the Divorce, Dissolution & Separation Act bill finally received the royal assent on 25th June 2020. This long awaited introduction will be the biggest revamp of divorce law in the last 50 years! Some may say, that the change to a “no fault divorce” is long overdue.
The new law is not expected to come into force until autumn 2021. However, this may be pushed back in light of the current situation.
Should I start divorce proceedings now or wait for the new law to come into force?
Some may say “just wait”; we appreciate this is easier said than done.
What other options do you have?
- Two years’ separation (if the other party consents to it)
- Five years’ separation (if they do not)
Of course, separation is worth thinking about; however, it does have its downsides – often parties may not have the financial capacity to live in separate homes.
Furthermore, for some, separation is not an option as it hinders the process of moving on and rebuilding (take, for example, separated individuals who have met someone new).
Moreover, the courts are restricted from making financial orders (even if parties have consented) unless the divorce process has been initiated and the Decree Nisi has been granted. (For further reference please see our divorce & financial blogs).
