No Fault Divorce
Posted:2nd September 2021
The long-awaited Divorce, Dissolution and Separation Bill 2020 (https://bills.parliament.uk/bills/2524) , which introduces ‘no-fault’ divorces in England and Wales, will come into force in April 2022.
The Bill – which has already been passed in the House of Lords – has been hailed as the biggest shake-up in divorce law for 50 years. It seeks to end the “blame game” and reduce the impact that allegations of blame can have on a couple and, in particular, children, upon separation. The reform will make divorce ‘kinder and more civilised’.
The current situation
As it stands now, unless a couple have been separated for 5 years or agree to divorce after 2 years separation, one party has to “blame” the other in the divorce petition regarding the breakdown of the marriage. 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. This is particularly important when children are involved.
Divorce law in the UK has largely remained static since the Matrimonial Causes Act came into force in 1973. For decades, family lawyers have campaigned and worked to reform aspects of the law which have become dated and unhelpful as the way in which we live our lives and conduct our relationships has changed.
As a family lawyer, I often see couples who simply fall out of love or the relationship runs out of steam. There are no hard feelings or seriously bruised egos. They behave like grown ups and just want to move on with their lives as quickly and as painlessly as possible but are left frustrated that one of them has to either admit adultery or say they’ve behaved so unreasonably that it’s intolerable for their spouse to live with them.
What’s different in the new law?
The new “no fault” legislation will enable a separating couple to file a joint petition for divorce or allow one spouse to give the court notice that they wish to divorce. Currently one person files the petition and the other responds.
Instead of having to rely on one of five facts to support the ground that a marriage has ended, spouses will simply be able to tell the court that the marriage has “irretrievably broken down”. No facts or explanation will be required. The new law will have a period of reflection between a petition being issued and the making of a conditional order of divorce (what is now known as a Decree Nisi). This will be for 20 weeks and during this time couples can consider their position before taking steps to finalise the divorce once a conditional order has been made.
The new law will also remove the ability to contest a divorce.
“The changes will make a huge difference to separating couples, their children and the family lawyers advising them. They have been welcomed by campaign groups and family law organisations such as Resolution who have worked tirelessly to update the law so that families can move forward in separation without the heartache of unnecessary blame.”
Should I wait until the new law comes into force?
Each case is different but the benefits of waiting until the new law comes into force include:
- The divorce may be more amicable as no-one needs to be blamed
- This may result in reduced legal costs if discussions about a financial settlement and child arrangements are less contentious than they might have been
- Waiting could work best if one spouse is likely to object to the divorce (and no adultery has taken place).
EMG’s family law team
At EMG, our family law team are members of Resolution (https://resolution.org.uk/) which means we are committed to resolving the difficulties our clients face in as non-confrontational a way as possible. This new legislation is fantastic news and will provide us with another tool to help our clients move on to the next stage of their lives.
If you would like any advice on what no-fault divorce means in practice or other family law issues, please contact Julia Middleton, Head of Family Law or Gemma Holmes, Senior Associate.