What does no-fault divorce mean for Asian marriages?

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Published: 17th September 2021
Area: Divorce

 

This post examines the new no-fault divorce legislation in the UK, how it will work, and what this might mean for Asian marriages. Read on for expert insights from Monica Gai, associate at Shakespeare Martineau.

The new no-fault divorce legislation

It was recently confirmed that the UK’s new no-fault divorce legislation (the Divorce, Dissolution and Separation Bill) will come into force in April 2022. The long-awaited changes aim to reduce the impact that allegations of blame can have on a couple and any children involved in the process.

There are many legal professionals who feel that the current divorce law is outdated and there have been calls for no-fault divorce for a while, particularly following the Owens v Owens case in 2018. Fortunately, the new Bill was passed in June 2020.

While the institution of marriage remains significant for many, it is particularly sacred within Asian communities, with separation often bringing a significant amount of shame and resentment. So, what will the new no-fault divorce legislation mean for those wishing to divorce amicably?

How will no-fault divorce work?

The announcement regaring no-fault divorce means that couples will no longer have to agree to be separated for two years, or have proof of their partner being at fault, in order to file for divorce. To apply for divorce, one party to the marriage will simply have to state that it has irretrievably broken down. Only one person needs to desire the divorce, and their spouse will not be able to refuse the application.

Being able to apply for a no-fault divorce will spare couples the emotional stress and strain of finding blame for an unreasonable behaviour petition or when they can’t, or don’t want to, wait two years to divorce on the grounds of separation or five years if they do not have the consent of the other spouse.

It should be noted that under the new no-fault divorce law, the statutory timeframe means that a divorce cannot be concluded in less than 26 weeks. Although it is possible for this to be shorter under the current law, it is still unusual for it to be less than four months, not including the time taken to resolve financial claims. As a result, the overall timeframe of the new system will be largely in line with the existing one. Plus, a fixed timeframe allows parties to reflect on whether the decision to end the marriage is the right one.

Understanding the new no-fault divorce law

The new no-fault divorce law will allow one spouse or joint couple, to make a statement of irretrievable breakdown, legally removing the element of blame. The ability for one spouse to contest a divorce if the other wants one, will also be removed.

Most importantly, it will introduce a 20-week period between the initial petition stage and when the court grants the provisional decree of divorce (the ‘decree nisi’). This will provide a period of reflection, allowing couples to cooperate and plan for their futures. Many regard this as one of the most beneficial developments of the no-fault divorce legislation.

Grounds for divorce and the no-fault divorce legislation

There is only one legal ground for divorce in the UK: that the marriage must have irretrievably broken down. At present, to support a statement of the irretrievable breakdown of a marriage, the person applying for the divorce must prove one of the five facts e.g. adultery, unreasonable behaviour, two years separation or desertion (2 or 5 years).

When the new no-fault divorce law comes into effect, separating couples will no longer have to rely on these five facts – instead, one of the parties to the divorce need only state that their marriage has irretrievably broken down. This represents a shift towards trusting the judgement of those involved in a divorce.

What does no-fault divorce mean for Asian communities?

The desire to end some Asian marriages may stem from cultural differences, which under current law, does not count as one of the five reasons for divorce and would be rejected by the court. As a result, an accusation of unreasonable behaviour will be required, potentially exacerbating an already stressful situation. In Asian cultures where there is often a high level of blame to begin with, further distress could make the situation even more difficult for the parties involved.

Fortunately, the new no-fault divorce law will remove any need for blame. Rather than having to accuse their partner based on one of the five facts, one would simply need to state that the relationship has broken down irretrievably under the no-fault divorce legislation. Although there may still be some level of stigma associated with this in some Asian communities, there will be no need to make an accusation of adultery or unreasonable behaviour (which could otherwise cause further reputational damage for those involved).

Seeking expert advice

The effects of divorce are often felt across families and the wider community, so the new no-fault divorce legislation will be a welcome change for the many Asian couples that wish to separate amicably.

However, until then, it is important that couples understand the current divorce laws, how the process is expected to change, and what the new rules might mean for them.

Seeking professional advice can help to make the process smoother and allows couples to stay focused on ensuring the best future for all involved.

Get in touch to find out how our  family law team can help.

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