Family Law Consultant Sabina Smith looks at the changes to divorce law coming from April 2022.
This year sees a significant and long awaited change in the law for divorce in England and Wales. 6 April 2022 is the scheduled date when all fault-based divorce will be removed from the statute to be replaced by a streamlined system and “no fault” divorce. Sabina reflects on the background and the impact of this change.
Over the Christmas break many of us enjoyed the BBC drama “A Very British Scandal” featuring a notorious divorce case from the 1960s, between the 11th Duke and Duchess of Argyll. For me it was also a timely reminder of the background to the problematic, fault-based divorce system which family lawyers are still working with today.
As the courtroom scenes showed, the Duke relied on the “fault” of his wife’s adultery as causing the breakdown of the marriage. However this was not the only cause of the marriage breaking down and as the drama showed, there were other factors, including the Duke’s own abusive behaviour, which led to the breakdown of the marriage.
Clearly these were two unhappy people in a marriage that had broken down, due to in part to the actions of both of them, and also to other circumstances beyond their control. But the law required that a moral judgement was made and that one of them was proved to be the “wrongdoer” in the marriage, before a divorce could be granted.
Family lawyers have been grappling with this anomaly ever since, and the law has been slow to keep pace with the change in social attitudes since the days of the Argyll divorce. Reforms were made in the 1970s, when a no fault divorce was introduced, but this was (and currently still is) only available to couples who have already been separated for over two years. For clients who are unable to wait that long, the only option is to fall back on fault-based divorce.
Understandably many people feel uncomfortable putting the blame on their spouse in this way, particularly where the situation is generally amicable, and the couple have simply grown apart. Alongside this, for the spouse on the receiving end it often feels unfair and upsetting to be blamed for the marriage going wrong.
These days, family law best practice is very much focussed on seeking consensus and reducing conflict. However, if the divorce has started on the basis of blaming one person the tone is set and it can then be all the more difficult moving forward to achieve agreement over other aspects of the divorce, such as arrangements for the children, and finances.
The new law in April should bring this to an end. It will no longer be possible to apply for divorce by blaming the other spouse, and “No fault” divorce will be available to all, including couples who are yet to separate. Under the new law it will also be possible for the couple to make a joint application for divorce, should they wish to do so.
This change is welcomed by family lawyers as a positive step, bringing the law in line with current social attitudes and solicitors’ best practice. Fault-based divorce will rightly be consigned to the history books, and the stuff of period dramas.
If you or someone you know needs assistance with separation or divorce please contact us at an early stage.
You can contact Sabina Smith on 01392 539206 or email [email protected]
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