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What does no-fault mean in divorce?

No-fault divorce meaning

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. This is a reflection of the fact that divorce lawyers and other legal professionals believe that, in this instance at least, that current divorce law is out of date. In response, the new law will:

Remove the need to prove one of the five facts of divorce (adultery, unreasonable behaviour, desertion of two years, separation of two years with consent to divorce and separation of five years without consent). Instead, only a statement of irretrievable breakdown will be needed.

Make it possible to jointly file for divorce, rather than it solely being one partner bringing the case.

Remove archaic language from the process (e.g., changing ‘decree absolute’ to ‘final order’.

  • When Is no-fault divorce coming to the UK?

    No-fault divorce has been possible in other countries for years, but is not currently possible in the U.K. The new no-fault divorce law was due to be implemented in the autumn of 2021 but has been pushed back to April 2022.

    This means that if you are currently wishing to divorce, you have two options: wait for April 2022—and potentially longer if the law is pushed back again—or divorce now under the current system.

  • How will no-fault divorce work?

    The central meaning of no-fault divorce is that you will no longer need to prove the breakdown of your divorce due to one of the five accepted reasons. However, there is far more to the process than just that.

  • Will a no-fault divorce be quicker?

    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).

    The core issue is that you still must agree on a divorce settlement with your partner. This means you will need to decide how to divide your assets (i.e., the family home and your other possessions), and your savings, not to mention custody of your children. This is no less difficult in a no-fault divorce than in any other kind of divorce.

  • No-fault divorce UK cost

    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. However, there is no guarantee that this will necessarily be the case in your divorce. Besides that, a no-fault divorce financial settlement is the same as any other divorce settlement, and can include maintenance, the division of assets, and so on.

  • Why no-fault divorce is good

    The campaign for no-fault divorce has been running for many years, championed by Resolution, an organisation for divorce law solicitors who see the damage that blame can cause to separating couples.

    Any divorce lawyer will say 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 considered 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 most 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 heart-breaking 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.

  • Is no-fault divorce a bad idea?

    The core issue that detractors point to is that no-fault divorce may lead to a spike in the divorce rate. 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.

    Another argument used is that no-fault divorce will cause more marriages to break down, although the reasoning behind this is less clear. Ultimately, it is the choice of the couple whether to divorce or not. While no-fault divorces make doing so easier, staying in a marriage solely because it is too time-consuming to divorce isn’t good either.

  • Do both parties have to agree to a no-fault divorce?

    It is possible for one party to contest a no-fault divorce in the same way that they could contest a traditional divorce. This occurs when the parties cannot agree on the terms of the divorce, i.e., a fair division of money and assets, maintenance, child custody and so on. If this occurs, then the case will be put before a judge, unless the couple agree on ADR (alternative dispute resolution) such as mediation.

Should I wait for no-fault divorce?

As no-fault divorce won’t come into force until next year, we recommend that you factor this in when making any decisions.

However, if you are considering commencing divorce proceedings now, is it worth waiting for the new law to come into effect in April 2022?

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.

Scenario 1:

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.

Scenario 2:

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.

Talk to a Stowe divorce solicitor

Welcome to Stowe Family Law, the divorce and family matters specialists.

Our top divorce lawyers have decades of experience working on cases, which means that we will understand your unique needs.

Whether you want to talk to an expert about no-fault divorce and if it’s worth waiting for one, or start proceedings, give us a call at 0330 056 3171, or request a free call back on a date and at a time of your choice.

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