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No-Fault Divorce: A Step Forward for the LGBTQ Community

Date:4 AUG 2022
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Associate

The introduction of the Divorce, Dissolution and Separation Act 2020 on 6 April 2022, bringing in the long-awaited “no-fault divorce”, is considered to be one of the most significant reforms of family law in many years. Although not widely commented on, it also potentially signifies an important step for the LGBTQ community.

Prior to this reform, parties seeking a divorce were required to convince a court that the marriage had irretrievably broken down. To do so, they had to cite one of the five facts: i) unreasonable behaviour, ii) adultery, iii) desertion, iv) 2 years’ separation with consent from the other party, and v) 5 years’ separation without consent from the other party. It is extremely positive that the new law has removed the blame requirement. However, the removal of these five facts is also significant in eradicating a discriminatory definition which has existed in the previous statute governing divorce law. Section 1(6) of the Matrimonial Causes Act 1973 stated that “only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section”. Whether the parties were in a same-sex relationship, or in a heterosexual relationship where adultery took place with someone of the same sex, this precluded them from citing adultery as the basis for the divorce. Whilst it could be referred to under the more general “unreasonable behaviour” fact, the limitation of the definition of adultery was discriminatory and antiquated.

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There have also been comments from Mike Freer MP, Minister for Equalities, that the “no-fault divorce” reform could also positively affect married transgender people who apply for a gender recognition certificate in order to obtain legal recognition of their gender. The Gender Recognition Act 2004 states that an application for a gender recognition certificate must include a statutory declaration from the applicant’s spouse, confirming that they consent to the marriage continuing after the issue of the certificate. If the statutory declaration is not completed, only an interim certificate, rather than a full certificate, will be issued until the marriage or civil partnership has been brought to an end. Mike Freer MP suggested that the new legislation could address this issue of spousal consent by making it easier and quicker to get a no-fault divorce. However, it is currently unclear quite how significantly the divorce reforms will impact this, particularly when nullity proceedings are also an option. The process is such that, if an interim gender recognition certificate has been issued and nullity proceedings are brought within six months of the certificate, the marriage is voidable and can therefore be annulled instead (which cannot be contested in the same way as a no-fault divorce). The ease or speed with which the new divorce process can be navigated is therefore less relevant.

In any event, it is clear that the new legislation is helping to create a much-needed discussion in Parliament about reforming the Gender Recognition Act 2004 and the further steps that need to be taken to make it easier to obtain a gender recognition certificate.

This article was first published by Kingsley Napley and is reproduced with permission.

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