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April 26 2021Read more
These new provisions are due to be implemented between Autumn 2021 and spring 2022 through the Divorce, Dissolution and Separation Act 2020. This article explores the updated legislation that governs divorce, dissolution, and separation in England & Wales.
Previously, the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 governs separation laws and states that an individual needs to show that the marriage or civil partnership has irretrievably broken down by relying upon facts they present to court. As a result, this places a burden on the petitioner to prove that their situation falls under one of the following factual grounds, including adultery, unreasonable behaviour, desertion, separated for 2 years and both agree to the separation and separated for 5 years but not all parties agree to the separation.
Individuals can often find themselves waiting two years before legally separating or compiling factual evidence showing the poor behaviour of the other party. This process is often unnecessary as the reasons set out in the petition rarely affect financial arrangements.
The purpose of the new legislation is to remove the requirement for ‘fault’ to exist where individuals otherwise want to apply for a divorce or dissolution immediately. Essentially allowing ‘no fault’ divorces and dissolutions.
The legislation reduces the burden of proof that is placed on the petitioner to provide evidence that the marriage has broken down by removing the requirement to present evidence of factual grounds. The court will rely on the statement that has been made by the petitioner expressing the breakdown. Section 1(3)(a) of the Divorce, Dissolution and Separation Act 2020 states that the courts must “take the statement to be conclusive evidence that the marriage has broken down irretrievably” and allow the divorce to proceed. This amendment could allow divorces to be more amicable by encouraging parties to take a collaborative approach.
In addition, these changes have been applied to the dissolution of civil partnerships and the Judicial Separation process as sections 2(2)(1) and section 3(1) of the Divorce, Dissolution and Separation Act 2020 states that the courts should accept statements as conclusive evidence, removing the requirement for factual grounds to be submitted.
Under the Judicial Separation process, if the application is made by one party then they must submit the statement to the court themselves and if the application is made by both parties, they must submit a statement to the court together.
If the spouse or civil partner of the petitioner does not agree to the divorce or dissolution, they will not be able to contest and the order would still be granted by the courts.
There are three stages within a divorce process the Petition, the Decree Nisi and the Decree Absolute. The Divorce, Dissolution and Separation Act 2020 removes some of the archaic legal language and amends the terminology used to refer to the second and third stages of the divorce as follows; The ‘Decree Nisi’ will become the ‘Conditional Divorce Order’ and the Decree Absolute will become the ‘Final Divorce Order’.
The new legislation will implement an obligation for parties to wait a minimum of twenty weeks following the Conditional Divorce Order (decree nisi) being granted before applying for the Final Divorce Order (decree absolute). This extended length of time is intended to encourage parties to work together to agree the practical arrangements surrounding their separation before finalising their divorce.
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