KNOWLEDGE

No fault divorce

Morton Fraser Consultant Savita Sharma
Author
Savita Sharma
Consultant
PUBLISHED:
04 February 2022
Audience:
Individuals and Families
category:
Article

In 8 weeks, 'No fault' divorce will come into effect in England and Wales on 6 April 2022. This is the biggest reform to Divorce Law since the inception of the Matrimonial Causes Act 1973.

From this date couples will be able to get divorced without one person needing to blame the other.

According to recent divorce statistics, 42% of marriages in England and Wales end in divorce which means that more than ever, focus must be to minimise conflict between separating couples. Divorce is seen as one of the top five most stressful life events, and as a society more must be done to make the process less hostile and aggressive.

The current position

Under current English law, there is one legal ground for divorce and that is the marriage has irretrievably broken down. This is proven by relying on one of the following facts:

  • Adultery - your husband or wife had sexual intercourse with someone else of the opposite sex (committed adultery)
  • Unreasonable behaviour - your husband or wife has behaved in such a way that you cannot reasonably be expected to live with them.
  • Desertion - your husband or wife has left you for at least 2 years before you apply for divorce
  • You’ve been separated for at least 2 years and your spouse agrees to a divorce
  • You’ve been separated for at least 5 years, in which no consent is needed.

What these facts mean for someone applying for a divorce is that unless they are using separation as the reason for divorce, a divorce can only be obtained by the spouse who applies for a divorce blaming the other spouse for the breakdown of their marriage.

Even when spouses are in agreement about getting a divorce (and in some cases may have already resolved their matrimonial financial matters or child arrangements), unreasonable behaviour is often used as the reason of divorce as this allows the proceedings to start straight away. Also, as a divorce is required before the court can make orders on finances, such as orders for the sale of a house or a pension share, a two-year wait may not be practical. This means that couples have no option but to start assigning blame which can cause unnecessary hostility in an already difficult situation. The process of blame may exacerbate and increase conflict which invariably leads to discussions about the matrimonial finances and childcare becoming more difficult.

However, as the blame and adversarial culture is rapidly being extinguished by lawyers introducing couples to new ways of resolving post-divorce arrangements such as mediation or arbitration, Divorce law has been lagging behind.

New Divorce Law

6 April 2022 is to bring a change which will be welcomed by many in the family law community in England and Wales. From this date, the Divorce, Dissolution and Separation Act 2020 (2020 Act) is due to come into force, with a number of changes that will simplify the divorce procedure in England and Wales.

Under the new legislation, couples will be able to divorce without having to blame the other spouse. They will no longer need to rely on one of the five facts mentioned above and instead must provide a statement of irretrievable breakdown of marriage along with their divorce application.

This new Act also removes the possibility of the divorce being contested, since the element of fault will be removed from the divorce process. However, it should be noted that the application can still be contested on the grounds of the validity of the marriage.

Further, an option for couples to present a joint application is also included in the new legislation, further streamlining the process and which allows couples to end their marriage jointly. This will assist couples to continue to work collaboratively with each other in respective of any childcare or financial arrangements. Under the current law it is only one spouse that can apply for a divorce.

The final change included in the 2020 Act is the language used within the process, and legal jargon will be removed and replace with plain English. As such, the first stage of the divorce which is known as "Decree Nisi" will now be referred to as a "Conditional Order" while the second stage, currently referred to as "Decree Absolute" will now be a "Final Order." 

These changes will also apply to the dissolution of civil partnerships.

Removing the fault-based element of divorce is a welcome change for many practitioners. The current law has been criticised for being outdated and creating increased animosity between couples at a time which is already particularly emotional. It is equally blamed for allowing parties to remain in a marriage because they cannot apportion sufficient blame to the other party to satisfy the criteria set out in current law.  This new law can therefore be seen as a positive change where couples will be able to apply jointly for divorce, on an amicable basis, allowing their efforts to be focused on the more important aspects of a divorce such as children or finances.

There have also been cases where people have been forced to remain in unhappy marriages, or sometimes even abusive marriages, where the other spouse will not consent to a divorce. The 2020 Act removes the prospect of this happening going forward. 

There have been some concerns about introducing no fault divorce. In particular, concerns that making divorce quicker and easier would make couples more likely to opt for it rather than trying to save their marriage. While another concern was that this new law would undermine the institution of marriage, with couples more likely to enter into marriage with less thought knowing that they can easily divorce if it doesn’t work out. The new law has taken all this into account and with the new divorce system due to come into force on 6 April 2022, the impact of these changes is yet to be seen. However, the overwhelming consensus seems to be that allowing couples to end their marriages with more dignity and less conflict can only be seen as a positive change which will help the way couples approach divorce and other related matters.

Disclaimer

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers.  Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.