By Muzammil Ali Akram
Divorce, Dissolution and Separation Bill, 2020 which received the Royal assent on 25 June 2020 is an Act of the UK Parliament which amends existing laws in relation to divorce to allow for a no-fault divorce in England and Wales (hereinafter referred to as “the Act”). The Act is expected to come into force in Autumn 2021 and has transformed the law regarding divorce, dissolution of civil partnership or judicial separation.
Under the previous law, if a party wanted to get a divorce, dissolution or separation, it had to establish either unreasonable behaviour or adultery – in other words, it was fault-based, except when sought on separation grounds.
There was overwhelming and long-awaited demand and need for allowing the parties to obtain a divorce without having to prove fault as the previous law had the effect of increasing animosity between the couples, particularly where children were involved. The outdated law was needlessly adversarial and restrictive of the personal autonomy of the couples.
Under this Act which is expected to come into force in Autumn 2021, either party to a relationship or both of them jointly can state that the marriage or civil partnership has broken down irretrievably without having to allege or prove fault. All they have to do is to state that the marriage has irretrievably broken down and their statement would be conclusive proof of that.
This Act is not applicable to any proceedings started before the commencement of the new Act.
The court will first make a conditional order of divorce after a certain period of time and if either or both the parties confirm to the court that they wish to proceed with the divorce or dissolution. The conditional order would then be followed by a final order. The words “decree nisi” and “decree absolute” have been replaced by simple words of conditional order and final order.
This Act also applies to judicial separation and dissolution of civil partnership and there will be no need to allege and prove fault. A statement confirming that the relationship has irretrievably broken down would suffice.
Frequently asked questions about divorce law in England and Wales
Q. How to get a divorce, dissolution of civil partnership or judicial separation?
A. Divorce, Dissolution and Separation Act, 2020 (“the new Act”) has transformed the law regarding divorce, dissolution of civil partnership or judicial separation.
Q. When is the new Act coming into force?
A. This Act is expected to come into force in Autumn 2021.
Q. What changes have been introduced by the new Act?
A. Under the previous law, if a party wanted to get a divorce, dissolution or separation, it had to establish either unreasonable behaviour or adultery. In other words, it was a fault-based divorce.
A party could also obtain divorce, dissolution or separation if established that there was a separation of two years and the other party consented to it, or a five-year separation without consent.
Under the new Act which is expected to come into force in Autumn 2021, either party to a relationship or both of them jointly can state that the marriage or civil partnership has broken down irretrievably. They do not have to allege fault or blame on each other. The court would not inquire into whether the allegations have been established or not.
Q. Can the new Act when it comes into force, apply to proceedings started before the coming into force of new Act?
A. The answer is No. The new Act is not applicable to any proceedings started before the commencement of the new Act.
Q. Why divorce law has been transformed?
A. The change in the divorce law was long-awaited. The outdated law was thought to create or increase conflict between the divorcing couples. The Parties had to indulge in the blame game and allege fault in order to get a divorce, or they had to separate for a certain period to get a divorce.
There was an overwhelming demand for a no-fault divorce as the previous law had the effect of increasing animosity between the couples, especially where children were involved and the parents wished to co-parent.
The outdated law was unnecessarily adversarial and restrictive of the personal autonomy of the couples who wanted to divorce or separate.
Now, the court is not required to make any factual inquiry under the new Act.
There is no need to allege fault or to wait for 2 or 5 years period of separation. It is enough if either or both the parties to a marriage or civil partnership state that the marriage or civil partnership has irretrievably broken down which would be considered conclusive and no need to provide evidence that the marriage has irretrievably broken down.
Q. What type of orders the court will make?
A. The court will first make a conditional order of divorce if either or both the parties confirm to the court that they wish to proceed with the dissolution and then it would make the final order. The words “decree nisi” and “decree absolute” have also been replaced by simple words of conditional order and final order.
Q. Is the change in the new Act also applies to judicial separation and dissolution of civil partnership?
A. Yes. In the case of judicial separation and dissolution of civil partnership also, it is no longer necessary to establish facts of adulty, unreasonable behaviour or separation for a certain period. Either or both the parties can apply for judicial separation or dissolution of a civil partnership without having to put blame on each other and the court is not required to make any factual inquiry.
