No fault divorce update

The second reading of the ‘No Fault’ Divorce Private Members Bill is due in Parliament on 11 March 2016.  At the moment, to apply for a divorce in England and Wales, married couples have to prove one of five facts namely, adultery, unreasonable behaviour, desertion, separation for a period of two years where both parties agree to divorce or separation for five years where they do not agree. It has long been accepted by lawyers that where adultery is not relevant couples have to go down the ‘unreasonable behaviour’ route if they don’t want to wait.  This means they have to prove that the other behaved in such a way they could not reasonably be expected to remain married.

Campaigners have long since argued for a change to the law so no one is to blame when a marriage breaks down.  Not only does allotting blame serve to inflame the situation and generate unnecessary conflict, it also encourages people to mislead the court about the reason their marriage failing. In turn, this makes it harder to resolve financial arrangements and make plans for any children as positions become entrenched due to the conflict that is generated.

Whilst it remains to be decided how a ‘no fault’ divorce might work, there are plans to introduce a sixth fact; allowing a spouse to apply for a divorce without any blame but then having to wait for a year before applying to finalise the divorce and obtain a Decree Absolute. It has been suggested that a minimum of at least six months should pass before a marriage can be dissolved.

In terms of financial arrangements in a volatile market, six months or one year can have a significant impact on the value of matrimonial assets. Not only will market conditions become a factor in the distribution of marital assets, it also allows time for the less candid spouse to attempt to conceal or dispose of assets during this period. Careful consideration will need to be given to the use of ‘freezing orders’ should such provisions come into effect and it is likely that any transactions contemplated during any cooling off period will need to be objectively justified.

I fear the sense of delay in dealing with financial arrangements will only serve to increase the number of freezing injunctions. The risk in this is that if one party panics and asks for a freezing injunction, on mere suspicion alone without clear objective evidence, it will result in costs penalties being made against the party who seeks protection and give rise to a new set of problems.

Whilst the law of divorce needs to be brought up to date so the blame allocation ends, the effects of a cooling off period need to be balanced with the need to conservatively manage finances pending a divorce.