No Fault Divorce
Soon, separating couples will be able to get a divorce, civil partnership dissolution or legal separation without having to blame each other for the breakdown of their relationship.
From Autumn 2021, the new law on no-fault divorce in the UK, which was originally announced in February 2019, will bring long-awaited reforms to an area of law that has not changed since 1973.
Under the new law, separating couples will no longer have to rely on one of the ‘five facts’ to prove the ground for divorce – the irretrievable breakdown of the relationship. Instead, the new law will encourage a more constructive approach to separation, promoting reconciliation and reflection where possible but ultimately trusting the judgment of the couple involved.
Why does divorce law need reform?
Under the current law, couples wanting to separate in the UK must rely on one or more ‘facts’ to prove that their relationship has irretrievably broken down. These facts are:
- Unreasonable behaviour
- Adultery (not available for civil partnership dissolution)
- Desertion for at least 2 years
- Separation for at least 2 years with the consent of both parties
- Separation for at least 5 years even if one party disagrees
- The divorce petition is brought by one party who must effectively ‘blame’ the other party for the divorce. If one half of the couple disagrees with the divorce or the facts relied upon, they can contest the divorce and potentially even prevent it.
This law has been criticised for many years for being outdated and unnecessarily stirring up conflict between couples. In the vast majority of cases, there is no such conflict – the couple naturally drifts apart or decides they want different things in life. In these cases, both parties will agree to the separation and the judge will swiftly grant the divorce without investigating the couple’s reasons.
Even if there is conflict between the couple, many argue that the divorce ‘blame game’ is still unnecessary. If one party in the couple wants a divorce, why should they be forced to prove their grievances or potentially even be forced to stay married if the other does not agree with their reasons?
There have been several concerning cases over the years of people being forced to remain married to incompatible and sometimes even abusive partners. For example, in 2018, Tina Owens lost her Supreme Court battle to divorce her husband, forcing her to remain married against her will (until 2020 when 5 years’ separation will allow her to get a divorce without her husband’s consent).
It was further to this case that the Government finally responded to calls to reform divorce law.
How will no-fault divorce work?
The Divorce, Dissolution and Separation Bill which introduces no-fault divorce will:
- Keep the sole ground of irretrievable breakdown of the relationship
- Remove the requirement to establish one or more facts to prove irretrievable breakdown
- Update the divorce language, for example:
- ‘Decree Nisi’ will become a ‘Conditional Order’
- ‘Decree Absolute’ will become a ‘Final Order’
- ‘Petitioner’ (the person submitting the application) will become the ‘applicant’
- Introduce joint applications where the couple both agrees that the relationship has irretrievably broken down (applicants will still be able to submit a sole application if their partner does not agree)
- Remove the ability to contest a divorce, dissolution or separation
- Introduce a new minimum period of 20 weeks from the start of proceedings to when the ‘Conditional Order’ can be made
- Keep the 6 week period between the Conditional Order and when the Final Order can be made
What no-fault divorce means for separating couples
- No more blame
- If both parties agree, they will be able to make a joint application for divorce or dissolution, allowing them to have a completely amicable separation
- No one will need to worry about their partner contesting the divorce or dissolution and forcing them to go to court, saving considerable time, costs and stress
- With the new time scales, most couples will have to wait about 6 months for their divorce or dissolution to finalise. This time is intended to be a period of reflection for both parties to consider whether they truly want to separate
- During this time, couples still need to make separate arrangements to:
- Divide their finances
- Agree to maintenance payments (if necessary)
- Sort out child residence/contact
- Agree on an ongoing parenting plan
Should you wait for no-fault divorce to start?
If you are ready to divorce now, it is probably beneficial to simply go ahead with it. As previously mentioned, the vast majority of divorces go through without any problems because both parties agree that the relationship has irretrievably broken down.
Although having to blame the divorce on one party is unattractive to many couples, it is mostly symbolic and will not affect the outcome of the divorce, including the financial settlement and arrangements for the children.
However, there are some circumstances in which you may prefer to wait for no-fault divorce, such as:
- You have an ‘acceptable reason’ to divorce (such as adultery) but your partner has told you that they will challenge your application and try to drag you to court. Once no-fault divorce comes in, they will be unable to do this and you can avoid the stress and expense of court proceedings
- Your partner does not want to get a divorce or dissolution and you do not have any ‘acceptable’ reasons to do so (such as adultery or unreasonable behaviour). Under the current law, you would have to wait 5 years to get a divorce without your partner’s consent, so waiting for no-fault divorce might actually help you get a divorce faster
- You have been separated for 5 years but you know your partner will challenge the divorce on the basis that it will cause them ‘grave financial hardship’ (which is one of the few reasons someone can contest this fact). Rather than going to court to argue your case, you may find it easier, cheaper and less stressful to wait another year for no-fault divorce
It is worth seeking tailored legal advice about whether applying for divorce or dissolution now or waiting for no-fault divorce would be in your best interests. For example, we can provide advice about whether any threats to take you to court over the divorce petition actually have any credibility.
Do you need advice about divorce, civil partnership dissolution or separation?
Crisp & Co is a dedicated firm of family lawyers who specialise in all types of family law matter, from straightforward separations to complicated defended divorce proceedings.
We are members of the Law Society Family Law Advanced Accreditation scheme for our skills and experience in this area and high standards of client care.
For advice about no-fault divorce or any other divorce, civil partnership dissolution or separation matter, get in touch with our divorce solicitors by giving us a call or filling in our online enquiry form.
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