It has only taken 50 years for England to remove the requirement to prove adultery or unreasonable behaviour to obtain a divorce, and finally introduce no fault divorce, which came into effect on 6 April 2022. This introduces in effect divorce on demand, with a process over time. Generally, it will take a minimum of 6 months from the start of the divorce until the grant of the divorce final order.
This welcomed modernisation of the law has a key impact in international jurisdiction disputes. Often there can be a race as to who can start a divorce quickest, in which jurisdiction and a race as to how quickly the final divorce order can be granted.
Under the new law, it is not possible to defend the divorce. It is only possible to ‘dispute’ the divorce in three ways. The first is to dispute that the court has jurisdiction to deal with a divorce – because of inadequate links to England, such as not being domiciled or habitually resident in England. The second is because the marriage was not valid and the third is because the marriage has already been legally ended (I acted for a Russian husband a couple of years ago who successfully defended the English divorce on the basis the wife had obtained her own divorce in Russia 10 years before – which she overlooked!).
Under the old law, the spouse opposing the divorce in England would always defend the divorce, disputing the adultery or unreasonable behaviour. That would delay the divorce for 6- 10 months and prevent the divorce being granted.
The new law means that it will be quicker to obtain a divorce in England than before. In a dispute between, say, England and Switzerland as to where the divorce can be, typically the Swiss courts can be slow with long gaps between court hearings. Moreover, in some countries it is not possible to finalise the divorce without dealing with maintenance and/or asset division. That is not required under the new law in England.
Although the economically weaker spouse can apply to the court after the conditional divorce order to delay the granting of the final divorce order, that is only in limited circumstances which will often not apply. Moreover, the court has the power to expedite the granting of a conditional or final divorce order in some circumstances.
The unexpected impact of the new no fault divorce law in England is that more jurisdiction disputes and races can be won more quickly in England.
This article was originally published in The Month, a monthly magazine with key takeaways and content driven by the Private Client Global Elite community. Read Mark’s article here.