As no-fault divorce draws closer we look at how this family law reform will work, what has changed, and what the benefits are.
What is no-fault divorce?
No-fault divorce is the name given to the divorce law reform being introduced in April 2022 in England and Wales that removes the need for blame as a basis for divorce.
What was divorce like before no-fault divorce?
Previously, even if both partners mutually agreed that the marriage was over, no wrongdoing had taken place, or both parties were equally ‘at fault’, there was a legal requirement to assign blame to just one party if they wished to divorce in under two years (the minimum separation period).
Based on the five grounds for fault-based divorce, couples had to spend a minimum of two years separated before they could file for divorce. The alternative was to cite behaviour or adultery as their grounds for divorce to demonstrate that their marriage had irretrievably broken down, but they then had to assign blame to one party, making allegations and disclosing the full details in their divorce application.
What were the five grounds for divorce?
- Behaviour – The most common grounds for divorce as it covered many types of ‘unreasonable behaviour’ and, while details of the behaviour were necessary, it didn’t require admission from your ex-partner.
- Adultery – which included the need for either your ex-partner to formally admit to sex with someone else , or for you to prove it had occurred. In addition, the law’s definition of adultery only referred to opposite-sex affairs, so could not be applied if your ex was in a same-sex relationship.
- Separation, two years – You have lived apart for two years, and the other party consents to the divorce.
- Separation, five years – In this case, the consent of the other party to the divorce is not required.
- Desertion – fundamentally different to separation; it referred to abandonment.
How is no-fault divorce different?
With no-fault divorce the only ground for divorce is that your relationship has ‘irretrievably broken down’. No other justification is needed to grant divorce.
You are no longer required by law to apportion blame to either you or your ex, fit your reasons for separation into one of the five reasons for divorce, formally accept blame if a divorce petition has been made against you, or provide proof of wrongdoing to support your application. You will also no longer be able to contest a divorce if you are the respondent.
In addition, under the new divorce law, if you and your partner both agree that your marriage has broken down irretrievably, you will be able to make a joint application for divorce.
Why is no-fault divorce being introduced?
Every relationship is unique, as are the reasons that marriages breakdown. Often the reason for the end of a marriage is the accumulative result of a combination of factors felt by both parties, rather than the deliberate actions of just one.
To have to distil years of unhappiness into one crystallised reason, and attribute blame to just one party, is unconstructive at best and can destroy what’s left of the relationship at a time when cooperation is needed most.
No-fault divorce paves the way for amicable collaboration, rather than conflict and stress, helping to reduce the overall mental health impact of separation and ease negotiations. It means parties can find a way to both move forward positively, and allows them to focus on the central issues, such as children, finances, and property.
How does no fault divorce work?
- Under the new law you, or you and your spouse, can make an application for divorce on the grounds that your marriage has broken down irretrievably.
- After a minimum of 20 weeks, the applicant(s) can confirm that they wish to proceed with the divorce.
- The court can then make a Conditional Order (previously called a Decree Nisi).
- After a minimum of 6 weeks, the court can make the Final Order (previously called a Decree Absolute).
How long will a no-fault divorce take?
While the new divorce process can take a minimum of 26 weeks, this does not factor in the time needed for administration, processing, and negotiations.
It was estimated that a typical uncontested fault-based divorce could take anywhere between six to eight months, and it is expected that the no-fault divorce process will take a similar amount of time.
What are the benefits of no-fault divorce?
Divorce is difficult enough without the need to assign blame, which ultimately only makes things more difficult.
No-fault divorce means:
- You no longer need to navigate agreeing which one of you should be ‘blamed’
- You don’t need to air the sensitive details that led to the end of your marriage
- There’s no need to gather enough unpleasant behaviour to qualify as ‘unreasonable’
- Respondents can no longer contest the application (although there will still be some reasons why the courts ability to deal with the divorce can be challenged)
- Conflict is reduced and puts couples in a better position to move forward
- Domestic abusers cannot contest divorce, effectively trapping their spouse
- Relationships are more likely to be amicable between parents post-separation, creating a more positive home environment for children
- Couples no longer have to wait 2 or 5 years to evidence prolonged separation, allowing them to move on sooner
- As before, no divorce and dissolution applications can be made during the first year of marriage.
Are there any disadvantages of no-fault divorce?
The aim of no-fault divorce is to make the divorce process simpler and less harmful to relationships. However, in some cases, apportioning blame can feel just and a way to hold an ex-partner accountable for wrongdoing. For example, in cases where one partner has committed adultery, or has been abusive, the no-fault based divorce process provides a way for them to divorce without the partner at fault accepting responsibility.
Will a no-fault divorce affect what I am entitled to?
No. Even before no-fault divorce, it was rare for the circumstances that led to separation to have any impact on the outcome of the divorce, such as division of financial assets and property or child arrangements. This will not change under no-fault divorce.
However, it’s likely that by avoiding the need for blame couples will be able to reach amicable and mutually favourable agreements more easily.
How will no-fault divorce affect financial settlements?
No. Divorce does not automatically end a couple’s financial commitments to each other. It’s vital that divorcing couples resolve their finances by reaching a financial settlement which is then transferred to a legally binding court order. No-fault divorce will not change this or impact the outcome.
Reaching a financial settlement can take time and it’s hoped that the introduction of the 20 week ‘cooling off’ period within the no-fault divorce process will allow parties ample time to resolve the finances of their marriage before the divorce is finalised.
How will no-fault divorce impact child arrangements?
Parents who divorce must come to an agreement about what’s best for their children. A Child Arrangement Order covers who the child/children will live with and how and when they will see each parent.
No-fault divorce will have no impact on any Child Arrangements Orders and will not affect how the court considers what is in the best interests of the child. With reduced acrimony and conflict, no-fault divorce paves the way for a more positive future for families with divorced parents.
Reaching an agreement on child arrangements can take time and it’s hoped that the introduction of the 20 week ‘cooling off’ period within the no-fault divorce process will allow parties ample time to explore and resolve before the divorce is finalised.
When does no-fault divorce become law?
No-fault divorce will begin on Wednesday 6th April 2022. From that date, the no-fault based process will apply to all divorce applications in England and Wales.
Find a list of no-fault divorce key dates here.