The Divorce, Dissolution and Separation Bill gained Royal assent on the 26th June 2020, ending years of campaigning to remove the need to blame one of the parties when seeking to divorce- allowing for no-fault divorce.
The new no-fault divorce law is due to be implemented in the autumn of 2021.
The campaign for no-fault divorce
The campaign for no-fault divorce has been running for many years, championed by Resolution, an organisation primarily for family lawyers who see the damage that blame can cause to separating couples.
As family lawyers, we recognise that taking away blame will not encourage more people to divorce as some people fear. Instead, it will help those who decide that their marriage or civil partnership is beyond hope of reconciliation to deal with the legal and practical consequences without getting caught up in the “blame game”.
There remains a common misconception that “fault” will materially impact a financial award. The simple truth is that “bad” behaviour is rarely taken into account when calculating what a financial settlement should be.
However, it is difficult for clients to separate the fact that they are relying on behaviour or adultery as the reasons for divorce from the discussions about finances. The belief that if someone has been wronged, there should be a consequence for the other party is a natural human reaction.
But that is not how the courts regard it in the vast majority of cases and have not done so for decades. Needing or wanting to blame creates an unnecessary distraction for many people engaging in the divorce process where the focus should be on reaching a resolution as quickly and painlessly as possible.
Removing blame helps parents avoid unnecessary conflict when deciding on future arrangements for their children. It can be heartbreaking to see a parent use their children against the other parent. For example, by denying contact or making frequent negative comments about their ex. Taking blame out of the legal process with this reform will help people to shift their focus away from “why it happened” towards a mindset of “what do we need to do now to move forward?”
Resolution and many other individuals and organisations that work with or have observed the impact of relationship breakdowns have long campaigned for a better way for people to separate. A way which focuses on less confrontational, non-litigious ways of reaching financial settlements and discussing arrangements for their children. No-fault divorce is a significant step along that road.
No-fault divorce Q&As
Will divorce reform lead to an increase in divorces?
If we look at other countries where reform has taken place, there has been a temporary increase in the number of divorces.
However, in the main, this has been driven by a drop in numbers in the period leading up to the change in the law as some people are prepared to wait to avoid blame. The “spike” then soon returns to normal levels and divorce numbers generally are in decline as fewer people are getting married.
Does no-fault divorce mean we can have a “quickie divorce”?
No, the process involves a period of six months before you can obtain a final divorce order.
It is not likely to be quicker than the current process (putting aside the delays in the overburdened court system).
Will no-fault divorce encourage more marriages to break down?
No, why should it? Couples do not engage in divorce because of the process. They are not thinking about the legal steps when they decide to divorce.
All this reform does is make it less contentious and painful when they do decide that their marriage is beyond repair.
Will it be cheaper to get divorced when there is no blame?
It makes logical sense that if your separation is less contentious, then the legal costs will be lower, but remember that there are often financial arrangements to sort out as well as dissolving the legal marriage or civil partnership.
With a no-blame culture in place, it is hoped that this will encourage more constructive discussions leading to better and therefore less expensive outcomes.
Should I wait for no-fault divorce?
So if you are considering commencing divorce proceedings, is it worth waiting for the new law to come into effect (due autumn 2021)?
After all, it will do away with any need to attribute blame for the breakdown of your marriage, potentially reduce any animosity, and make it much more likely that arrangements for any dependent children and finances will be sorted out amicably.
The following two scenarios highlight why waiting for a no-fault divorce could be a good idea.
You recently separated from your spouse. Your spouse is unlikely to consent to a divorce and hasn’t committed adultery.
Under the present law, your only options are to wait until you have been separated for five years, or to allege that your spouse has behaved unreasonably.
You would rather not take the latter course, but waiting for five years would be unbearable, so you are considering issuing an ‘unreasonable behaviour’ divorce petition.
How about just waiting until no-fault divorce comes in instead? You will not need to make any allegations against your spouse, and will not need their consent to a divorce.
You want to issue divorce proceedings on the basis of your spouse’s ‘unreasonable behaviour’.
However, they don’t want a divorce, and you are certain that they will take strong objection to any allegations you make, making it much longer, more expensive, and more stressful.
Why not wait until no-fault divorce comes in, instead of issuing the divorce now? That way, you will not need to make any allegations against your spouse, who will not be able to defend the divorce.
Now, all of the above is just a bit of a ‘thought experiment’. It most certainly does not represent legal advice. If you are considering commencing divorce proceedings, you should seek the advice of a practising expert family lawyer.
Stowe Family Law has the expertise you need. For further information, see our divorce lawyer page.
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If you would like any advice on what no-fault divorce means in practice or other family law issues, please contact our Client Care Team to speak to one of our specialist divorce lawyers here.