No-fault Divorce

From April 2022, The Divorce, Dissolution and Separation Act 2020, will bring divorce law into the twenty-first century by introducing `no fault’ divorce in England and Wales.

Current legal Framework

Currently, the sole ground for divorce, is a couple’s marriage must have `irretrievably broken down’. To prove this, one of the following five facts must be demonstrated:

  • The respondent has committed adultery and the petitioner finds it intolerable to live with them
  • The respondent has behaved unreasonably, and the petitioner cannot reasonably be expected to live with them
  • The respondent has deserted the petitioner for at least two years
  • The couple have been separated for at least two years, and both parties agree
  • The couple have been separated for at least five years

The current law has been criticised for exacerbating the already emotionally difficult divorce process. In most situations, divorcing couples will rely on the unreasonable behaviour ground that allows them to waive the two-year separation period. This requires the petitioner to provide examples of their spouse’s behaviour that demonstrates they `cannot reasonably be expected to live with them’. Consequently, this often creates unnecessary conflict between the separating couples and draws attention away from important issues such as children, finances and property.

 

What `no-fault’ divorce will mean for divorcing couples?

The `no fault’ law will remove the need to prove one of the five facts, and instead allow divorcing couples to provide a statement that the marriage has `irretrievably broken down’. This removes the need for parties to assign blame, as it will not be necessary for a party to provide evidence of their spouse’s unreasonable behaviour. In addition, once the statement of irretrievable breakdown has been made, the Court will treat this as conclusive evidence that the marriage has broken down. As such, it will not be possible for the other party to contest the divorce.

Additionally, the new law will allow parties to submit a joint divorce application if they both agree that the marriage has broken down, thereby encouraging parties to remain amicable. This is another significant change from the current law where only one spouse can apply for the divorce.

The new law will also remove legal jargon including, `decree nisi’, `decree absolute’ and `petitioner’, with more modern terms such as, `conditional order’, `final order’ and `applicant’. This modernised language will make the legislation more accessible to the general public and considerably easier to understand.

 

Will the new law speed up the divorce process?

Whilst it is expected that the reformed law will remove some delays in the initial stages, it will not make divorce instantaneous. The new law will introduce a minimum timeframe of twenty weeks between the issuing of divorce proceedings and the conditional order. Legislators have said that this period is designed for `meaningful reflection’, providing couples with the opportunity to reconcile, or if separation is inevitable, make arrangements for the future. This period counteracts concerns that the new law will make divorce easier and consequently couples will not attempt to save their marriage.

After this period has elapsed, the reformed law retains the current law’s position that six weeks must then pass before the final order can be made.

Should you wish to arrange an appointment or for further information, please contact the department’s secretary, Ana Bedingfield, on 01245 504 904 and she will be happy to assist.

Charlotte is an experienced Chartered Legal Executive in the Family Team at Leonard Gray and deals with divorces, dissolutions, financial matters, co-habitation disputes, pre-nuptial and post-nuptial agreements, domestic abuse matters and matters pertaining to children.