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No Fault Divorce – What you need to know

The biggest shake up to divorce law since the 1970s comes into effect on 6 April.

Current Law

Under the current law to get divorced you need to prove that your marriage has broken down irretrievably. To do this you need to prove that either:

  1. one spouse has committed adultery; or
  2. a spouse’s behaviour has been unreasonable; or
  3. you have been separated for 2 years and both agree to divorce; or
  4. you have been separated for 5 years; or
  5. your spouse has deserted you and cannot be located.

The most common way to obtain a divorce currently is therefore to cite “unreasonable behaviour”. This means listing a number of examples of types of behaviour you find unreasonable.

This is often incredibly difficult and upsetting for everyone involved as it requires one spouse to blame the other for the breakdown of the marriage. Whilst sometimes apportioning blame in this way will be a fair reflection of what has happened, often it is not and sets a combative and aggressive tone from the outset. This makes it difficult to adopt a collaborative and focused approach to resolving issues relating to children and money. It also requires you to reach a subjective threshold – is the behaviour unreasonable enough?

New Law – “No Fault Divorce”

From 6 April 2022, the Divorce, Dissolution and Separation Act 2020 will come into effect. As such, it will no longer be necessary to apportion blame on divorce. The new law will remove the requirement to assign blame, by allowing one party – or the parties jointly – to make a statement of irretrievable breakdown. No evidence will be required for this.

Another key aspect of the change in law is the limit on challenging a divorce – which in some cases has allowed domestic abusers to exercise coercive control over their victim. Applications for divorce will proceed undisputed unless there are queries over the validity of the marriage or jurisdiction.

The legal language used is also changing. Here is a list of some of the new and old terminology:

  • Divorce Petition = Divorce Application
  • Petitioner = Applicant
  • Decree Nisi = Conditional Order
  • Decree Absolute = Final Order
  • Defended = Disputed

You will need to wait 20 weeks between issuing a divorce application and applying for a Conditional Order. This has been introduced to encourage a period of reflection. You can still issue financial and Children Act proceedings during this waiting period.

All divorce applications will be processed via the HMCTS online portal (as is currently the case). The court fee of £593 will remain the same.

In cases of joint applications, only one of the applicants will be able to apply for the Final Order. This cannot be applied for jointly.

Orders for costs will be very rare and should not be requested in cases where there is a straightforward application for a divorce.

All of these changes to the law also apply to Civil Partnerships.

Why is it happening?

This is a long awaited change in family law that required significant campaigning. Resolution (an organisation made up of family lawyers whose aim it is to settle disputes without the need for contentious litigation) led the way in lobbying the government.

Those against the change in the law believe that it makes obtaining a divorce too easy and therefore devalues the institution of marriage. However, this is not a new phenomenon. No fault divorce, as it is known, has been adopted in many countries: Sweden (1973), Australia (1975), Germany (1976), Canada (1986), Scotland (2006), USA (2010) and others. It is also important in an age where divorce rates are c.42%, to provide a way to divorce amicably and without conflict rather than one that encourages apportioning blame at the outset. The change is not expected to affect divorce rates, rather help to improve the experience of those going through a divorce.

It is hoped that this change will encourage divorcing couples to focus on the issues to be resolved rather than blaming each other for what has happened in the past. Ultimately, this should result in better outcomes for the family. This is certainly what those who have campaigned for this law reform hope to see.

If you would like some advice regarding No Fault Divorce, please do not hesitate to contact us.

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