What’s a ‘no fault divorce’?

Divorce|February 29th 2016

The subject of ‘no fault divorce’ is not a new one in family law. Lawyers, judges and politicians have all added their proverbial two cents about it over the years and the conversation does not appear to be going away any time soon.

So what is a ‘no fault divorce’?

Sometimes married couples drift apart. The spark has gone and they feel more like housemates than loving partners. It’s sad but it happens. Neither one has done anything particularly wrong but they both admit that their relationship isn’t working and they want to separate. A no fault divorce would allow them to do this without the need for blame.

Is no fault divorce available in the UK?

Yes, but in England and Wales this is only possible if you have first lived separately and apart for at least two years (if you’re in agreement, otherwise five years). Otherwise, sadly, one party will need to blame the other for the irretrievable breakdown of the marriage by reason of behaviour, adultery or desertion.

What if neither spouse is to blame?

Unless the petition proceeds on the basis of separation, one person must be to blame or the divorce cannot go ahead. A significant number of divorces in England and Wales cite behaviour, which could be because it seems to be the easiest to demonstrate in court. As the law stands now it is quite simply not enough to say that you have just fallen out of love.

Do other countries have no fault divorce?

Yes, quite a few do. The United States, Australia, Canada, Sweden and Spain all have it. As do Russia and China.

So is no fault divorce going to be introduced here?

It’s hard to say for sure but it is not a new idea. In 1996 MPs attempted to bring it in but were unsuccessful. The government at the time placed a high priority on keeping marriages together.

A bill currently making its way through parliament proposes to give couples the opportunity to submit a joint petition for divorce which would be followed by a 12 month ‘cooling off’ period before the declaration of decree absolute. Which sounds idyllic but how many married couples would agree their marriage was over, that neither was to blame and then be willing to wait a year before it is finalised? Suddenly images of hen’s teeth spring to mind.

Photo by Jamie Matthews via Flickr

Author: Jennifer Williamson

Jennifer is based at Stowe Family Law's Winchester office. She is an accredited member of Resolution and practices in all aspects of family law. These included dealing with married and unmarried couples, pre- and postnuptial agreements, divorce, finances and cohabitation.

Comments(2)

  1. Elena says:

    I am living in a country who uses the “no fault divorce” or Divorce by mutual consent. It only works when both parties are very reasonable, honest and fair. But when one of the spouse is abusive (financially or emotionally) and has a “Dr Jekyll and Mr Hyde” personality, it simply does not work. I have been there.

  2. stitchedup says:

    Some might argue it’s more often Dr. Jekyll and Mrs Hyde. Women in the UK tend to have a disproportionate sense of entitlement that is fuelled by the de-facto approach taken by most family courts whic amounts to wrap the woman up in cotton wool and put the man in the gutter. They see it all the time, women having custody of the kids, the lions share of the family home and lifelong spousal maintenance…. They are conditioned to think this is born and their entitlement.

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