It’s one year since we welcomed the arrival of no-fault divorce in England and Wales (6th April 2022).
For the past year, couples have been able to file for divorce without accepting fault or assigning blame to their partner, and without fabricating a reason where they don’t naturally fit into the five previously accepted grounds for divorce.
No-fault divorce also removed the ability to contest a divorce.
What was it like to divorce before no-fault divorce?
Previously, irrespective of the reasons for divorce or the personal circumstances of a couple, there was a legal requirement to attribute blame to only one party, if they wanted to divorce in less than two years.
The five reasons, or grounds, for divorce included unreasonable behaviour, adultery, separation after two years with consent, separation after 5 years without consent, or desertion.
Why was no-fault divorce was introduced?
Having to distil events into one crystallised reason and assign blame to only one party was unproductive for separating couples at best and frequently destroyed what was left of the relationship.
Instead of conflict and stress, no-fault divorce paved the way for amicable collaboration, easing negotiations and reducing the overall mental health impact of divorce. It means that parties can find a way to move forward while focusing on the important issues, such as children, finances, and property.
In addition, removing the ability to contest a divorce removed potential barriers for victim-survivors of domestic abuse, and those trapped in controlling relationships.
Has no-fault divorce caused an increase in divorce applications?
Initially, there was an influx of people starting the divorce process, but this was primarily people who had held back from starting until the new system was launched, as it allowed a more amicable approach.
And while enquiries for divorce have been rising exponentially, and recent statistics revealed that divorce applications have risen to the highest level in a decade, this is likely to be due to a variety of different reasons, including the Covid-19 pandemic, which put huge pressure on relationships, the ever deeper cost of living crisis, and the increasing ease of a DIY divorce.
DIY divorce / kitchen settlements
No-fault divorce has played a role in changing the context in which couples choose to go through divorce. Anecdotally, more and more people are turning to DIY divorce and ‘kitchen table settlements’ (where the couple sits at the table to decide the ins-and-outs of the separation) to make their breakup official.
However, it is important that couples take legal and financial advice to understand the full impact of the settlement, especially regarding their long-term needs.
One of the most common potential pitfalls of a DIY divorce, where people have not sought legal, pension or financial advice, is decisions around the family home and the division of pensions.
In the moment, a larger share of the family home in exchange for disregarding a pension share can seem like a good outcome, providing immediate security. However, pensions have long-term benefits, sometimes with financial uplifts or bonuses, making them more valuable than they seem on paper.
Not getting comprehensive advice in this area could mean people make ill-informed decisions, and potentially find themselves in a much more vulnerable financial position upon retirement.
Reflections on no-fault divorce one year on
No-fault divorce has removed the ‘blame’ element of the process. Blame in a divorce achieved very little and distracted people from tackling the issues that matter. Often, clients would find it hard to detach blame from their thinking when considering what a fair divorce settlement should look like.
Now, that removal of blame has helped make things less confrontational between couples, making it easier to reach agreements amicably and without the need for the family court.
In some cases, we have also seen that the process of reaching an agreement amicably has reduced the level of negotiation needed, saving time and costs, but it does still depend on the factors of the case and complexity of the assets.
However, while no-fault divorce is a step forward that’s hugely benefited many, we have seen an unexpected negative impact on some couples going through the process.
No-fault divorce has removed the sometimes cathartic and understandable desire to blame. This has left some people frustrated. For example, if one party files for divorce following their partner’s infidelity, there is no longer a formal acknowledgement of their ex-partner’s misconduct or a way to hold them accountable for their actions. Whether divorce is a result of serious and sustained wrongdoing, or simply the result of growing apart, the divorce process is the same.
Now, with no-fault divorce, it’s not essential to share the reason for the marital breakdown. However, as family lawyers we sometimes see that because this emotional line hasn’t been drawn at the outset, it can muddy the waters later in the divorce journey. Without an official vent, suppressed frustration about the cause of the divorce can occur. For many, tensions start running high later in the proceedings, creating further animosity and lengthier arguments over the practical elements of the divorce, such as dividing up assets and agreeing child arrangements.
We must remember that most people going through a divorce are looking at matters through an emotional lens, rather than from a purely rational perspective. So, while no-fault divorce has certainly been a welcome change that has helped many couples to separate amicably, there is a flip side that should be acknowledged to help mitigate animosity further down the line.