The end of the blame game in divorce in England and Wales, and what it means for Hong Kong07Apr2022
The Divorce, Dissolution and Separation Act (2020) (the “Act”) came into force on 6 April 2022 in England and Wales, allowing couples to divorce without assigning blame, or what is often called ‘no-fault divorce’.
What it means
Before this significant reform, one spouse had to either make accusations about the other spouse’s conduct, such as unreasonable behaviour or adultery, or couples would have had to be separated for two years (with consent) or five years (without consent) before an application for divorce can be made. Now, applicants may simply provide a statement of irretrievable breakdown of the marriage for the application to be considered, without allocation of fault.
However, to balance out the lower threshold to apply for a divorce, the Act also puts in place a new requirement of a 20-week period from the start of the proceedings to a conditional divorce order being made (a decree nisi in Hong Kong). This would serve as a cool-down period for couples to consider potential reconciliation, or where reconciliation is impossible, time for them to come to an agreement on arrangements for the future.
Aim of the Act
The aim of this new regime is to reduce the acrimony suffered by couples as well as the children involved by removing the need for finger-pointing, which is especially important at a time when emotions are already running high. This would also enable couples to focus on more practical matters involved, such as financial and children’s arrangement, and move on with their lives without the bitter, lengthy, and costly litigation process over the main suit of divorce. Further, the Act will also put a stop to any contest to the divorce by the respondent spouse with a wish to trap their partner in an unhappy or even abusive marriage.
Parliament also aim to simplify the language used in divorce, replacing terms such as ‘Petitioner’, ‘decree nisi’, and ‘decree absolute’ to ‘Applicant, ‘conditional order’, and ‘final order.
Effect of the new regime
When Scotland introduced the no-fault divorce regime in 2008, there was a spike in applications for divorce. It is predicted by many in the family law field that the jurisdiction would similarly see an increase in divorce proceedings as it has been reported that many couples who have agreed to separate in the past year preferred to wait for the enactment of the Act to avoid allocating blame. In fact, according to the Family Court Statistics recently published by the Ministry of Justice, the Court has seen a decrease in the number of divorce petitions in Q4 2021 by 26% compared to the same period in 2020.
The enactment of the Act is said to be the biggest reform in divorce law in England and Wales in 50 years. Many believe that this is only the beginning of wider government efforts in changing divorce law. In fact, the government has already committed to look into the law around financial settlements after a divorce, such as the division of assets and maintenance payments.
No-fault divorce in Hong Kong?
England and Wales is one of the slower common law jurisdictions to introduce no-fault divorce, which only came to force after some 30 years of debate (Canada introduced the system in 1968, Australia in 1975, New Zealand in 1981).
In Hong Kong, allocation of fault is also necessary if the requirements for duration of separation are not met (one-year separation with consent, two years without). This is often done with a petition for divorce by one party to the marriage citing the other party’s unreasonable behaviour leading to the irretrievable breakdown of the marriage. Even though the requirements for separation period in Hong Kong are not as stringent as those previously in force in England and Wales, it could also prove difficult where parties wish for swift and amicable divorce proceedings without laying blame.
In these situations, practitioners often try to promote less hostile proceedings by citing what are referred to as mild particulars of unreasonable behaviour in the petition. This is intended to reduce tension between the parties as much as possible while still satisfying the Family Court’s requirement for the divorce to move forward.
The relevant legislations in Hong Kong were last amended in 1998. Since then, family law has developed in the areas of financial and children’s arrangements through case law, in which judges have always encouraged parties to mediate and come to a settlement, thereby avoiding contentious and prolonged court hearings. Perhaps a healthy start of divorce proceedings by removing the need for one spouse to provide a list of the other’s conduct would promote constructive and positive attitudes, allowing parties to achieve the settlement-prone mindset expected by the court.
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.