No fault divorce will allow couples to end their marriage or civil partnership without having to blame each other for the breakdown of their relationship.
Under new law, due to be implemented on 6th April 2022, couples will no longer have to use one of the five facts for divorce (desertion, adultery, unreasonable behaviour, 2 years separation with consent or 5 years separation without consent).
What does a no-fault divorce mean?
The change in the law will simplify the process of divorce and remove the option to contest the divorce. The main changes are detailed below:
- The parties will only need to produce a statement of irretrievable breakdown – no blame will be apportioned
- An application for divorce can be made jointly or by a sole applicant
- The option of contesting the divorce will be removed
- Terminology will change: Decree Nisi becomes a Conditional Order and Decree Absolute a Final Order.
- There will be a period of reflection – a minimum of 20 weeks – from when the application for divorce is made to when a Conditional Order can be made. This provides a period of reflection for the parties to consider their decision.
Can you get a no-fault divorce in the UK?
Under current divorce laws a couple can only get a no-fault divorce in the UK after a period of separation. One party can apply if they both agree and have been separated for two years or if they have been separated for 5 years there is no need to obtain the agreement of the other party.
Should you wait for no-fault divorce?
If you are ready to divorce now, it is probably wise to continue through the current system, particularly if your financial settlement is almost agreed and you do not want to wait for the 20 week reflection period to end before you can ask the Court to make it legally binding. There will be exceptions however, for example if you were planning to wait until you had been separated for 5 years because you didn’t want to cause any upset; or if you are planning to apply on the grounds of unreasonable behaviour but fear your partner will contest the divorce. Take advantage of a free telephone appointment with one of our lawyers to discuss your personal circumstances.
Why do we need no-fault divorce?
As the current process of divorce requires one party to divorce the other and provide reasons for their desire to divorce, it is difficult to focus on moving forward without conflict. Current divorce law, from the 1970s, does not adequately reflect modern society and introduces an unnecessary element of delay or conflict in the divorce process. For example, in the case of unreasonable behaviour the petitioner is required to produce a statement of reasons that they no longer wish to be married. These reasons may upset or anger the other party and cause them to dispute them, delaying the process or in the worst case denying the divorce completely. This happened in the case of Mrs Tina Owens who was denied a divorce by the courts when her husband refused to accept claims of unreasonable behaviour and a judge refused to dissolve the marriage.
For parents getting divorced the current system requires people to focus on what a bad partner they had which makes it twice as difficult to focus on what a good parent they can be. Without the need for blame to be apportioned, it is likely that the process will be less upsetting for many, helping children get through a very difficult time. While the change in the law is not a silver bullet, it will certainly help avoid increased conflict. It will also help the co-parenting that will need to take place even after the marriage has been dissolved.
How a lawyer will help with a no-fault divorce
The role of the divorce lawyer will change but they will still have a role in:
- Advising on how finances should be divided on divorce, including things like how the family home will be dealt with, how pensions and other savings and investments might be split and whether there is a requirement for maintenance payments.
- Preparing documents, for example the consent order to create a legally binding financial agreement between the parties.
- Advising on entitlements and helping to negotiate. If no agreement can be reached your solicitor will advise as to the merits of issuing court proceedings and will represent you within these proceedings.
- Implementing orders, whether by consent or decided by the court.
Advising and supporting parents who are in dispute to reach arrangements about how they will care for their children.
- Preparing cases to be presented to the court and conducting the proceedings where disputes cannot be settled.
This isn’t an exhaustive list but illustrates that the divorce itself may only be a small part of the legal process of relationship breakdown.
How long does it take for no fault divorce?
No-one can apply for a no-fault divorce until the law changes, expected to take place in April 2021. The process will then be as follows:
- Single or joint application for a divorce order made
- 20 weeks later, and having confirmed that the applicant or applicants still wish to go ahead, the Conditional Order will be made by the court
- 6 weeks later the Final Order will be made.
In total therefore a no-fault divorce will take around 6 months.
No-fault divorce at a glance
The Divorce, Dissolution and Separation Act 2020 was enacted on 25th June 2020 and makes amendments to the Matrimonial Causes Act 1973, in simple terms this is how the two compare:
|Current divorce law||No-fault divorce|
|Prove 1 of 5 facts to demonstrate that the marriage has irretrievably broken down. In the case of Adultery or Unreasonable Behaviour this will mean making claims against the other party or producing evidence.||Produce a statement that the marriage has broken down irretrievably, no requirement for proof.|
|One party applies for the divorce (as the petitioner) against the other party, introducing an element of blame.||Either or both parties may apply for a divorce order.|
|If the other party (known as the respondent) disagrees with the divorce or the facts being replied upon, they can contest the divorce.||Opportunity to contest the divorce is removed.|
|6-week cooling off period between Decree Nisi and Decree Absolute.||This is the same, although terminology will change to Conditional Order and Final Order|
|Judge required to consider whether the facts are sufficient and proven before accepting the divorce petition.||Court must accept the statement and make a divorce order.|
|Any financial settlement between the parties, or arrangement over the care of their children, should be finalised ideally before Decree Absolute.||Minimum 20-weeks period from the application for divorce to when the Conditional Order can be made introduced. This is intended to allow a period of reflection and time to resolve financial and children matters.|