No-Fault Divorce in the UK_Is This What’s In Store For Hong Kong?

No Fault Divorce
11 月 18, 2022

On 6th April 2022, England and Wales adopted a “No-Fault Divorce Law” pursuant to the Divorce Dissolution and Separation Act, which allows couples to legally separate without either party having to admit any wrongdoing.   As Editor-in-Chief at Hong Kong Divorce and as a qualified attorney with the State Bar of California and a member of the United States District Court, Southern District of California and United States District Court, Central District of California since 2007, I wanted to discuss No-Fault Divorce and how the new law in the United Kingdom compares to No-Fault Divorce in California.

Under this new No-Fault Divorce law in the United Kingdom, parties filing for Divorce can file a joint application for divorce without the need to cite terms such as Adultery or “Unreasonable Behaviour” and thus pointing to the conduct of the other party.  This is a change from the previous law in the United Kingdom where parties filed for Divorce citing fault either by way of adultery or unreasonable behaviour or desertion.  Whilst couples in the United Kingdom can opt for divorce based on 2 years’ separation, this basis for divorce requires consent from the other party and if no consent is received, parties must be separated for an additional 5 years before a Petition for Divorce can be filed.

No-Fault Divorce has long been something followed in California.  In fact, California was the first state in the USA to enact a No-Fault Divorce law.  This law was signed by Governor Ronald Reagan, a divorced and remarried movie star at the time and came into effect in 1970.  Many states in the USA now follow the No-Fault Divorce law including New York, Florida, Washington and Hawaii, among others.

For those in favour of the No-Fault Divorce law, the benefit of the move towards this new law is that the litigious heat that many couples face in divorce will be taken out of the divorce process as the courts will no longer look to fault and the reasons behind the breakdown of the marriage.  Instead, the view and hope are that the parties will instead focus on a more collaborative way forward in resolving issues related to children and financial division.  In the United Kingdom, industry leaders are embracing the move towards the No-Fault divorce law as “fault” creates unnecessary conflict and in fact, many believe that “fault” has no bearing on the outcome of financial proceedings.

It is true that in California, there are at times litigious divorces even though it is a No-Fault state.  Many parties can bring in “fault” through declarations and testimonies filed with the Court in support of their motions for relief.  It is not a perfect system.  And it is likely that in the United Kingdom, while the hope may be to create a more harmonious environment for divorcing parties, there still will be loopholes where parties’ attempts to bring in information to prove fault and blame will remain to play a pivotal role in the divorce.  However, similar to what California has seen in their No-Fault divorce system, the United Kingdom judges will no longer focus on what caused the breakdown of the marriage and instead focus on simply moving the divorce forward and focusing on the wishes of the parties to end the marriage.

With the new law in effect as of 6th April 2022, the parties can now file for divorce and cite “irreconcilable differences” which is how divorcing parties file for divorce in California and other No-Fault states. In addition to the citation of “irreconcilable differences” the parties will then file for a condition order (similar to a Decree Nisi in Hong Kong, which is a first step towards a divorce or Decree Absolute) and then once that is granted, the parties can then apply for a final order (Decree Absolute).

The big question many are now asking is whether the process in the United Kingdom with No-Fault divorce will result in a quicker divorce process.  According to experts in the United Kingdom, there will be a minimum period of 20 weeks from the commencement of the proceedings to the conditional order.  In California, the courts provide parties an opportunity to ponder upon the divorce and provides opportunity for reconciliation during the “waiting period.”  In California under Section 2339(a) of the California Family Code, the waiting period is six (6) months and begins once the Summons and Petition for Divorce is filed or the date of appearance of the Respondent, whichever occurs first.  This minimum 6-month period to obtain a divorce is to allow the parties sufficient time for parties to change their mind about the divorce and to reconcile.

The England and Wales No-Fault Divorce law follows the likes of many other international countries who have also adopted this No-Fault divorce including Australia (Family Law Act 1975), Canada (The Divorce Act 1968) and Sweden.  Whether the No-Fault divorce law will incite more divorces in the United Kingdom is yet to be seen.  Proponents against No-Fault divorce argue that this will only increase the filing of divorce petitions, in addition to the fact that without allowing fault to be introduced into the discussion, judges will make important decisions without consideration of the facts, behaviour and circumstances that led to the breakdown of the marriage.

A big question among practitioners and clients in Hong Kong is whether the Hong Kong courts will follow the United Kingdom by introducing No-Fault Divorce.  This is yet to be seen but it is likely that if Hong Kong courts decide to move towards No-Fault Divorce, it will take much time and consideration before any decisions are made.  History has demonstrated that Hong Kong courts are slow to follow the United Kingdom and thus, only time will tell if Hong Kong decides to move towards No-Fault Divorce.

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