What are the pros and cons of no-fault divorce?
After several years of waiting the government’s much-anticipated Divorce, Dissolution and Separation Act 2020 finally came into effect in England and Wales on 6th April 2022. Generally referred to as no fault divorce this is the first change to the UK’s divorce laws in 50 years!
The more significant changes within the new laws now mean that the grounds for divorce are entirely non-fault instead of the previous mix of both fault and non-fault-based grounds for divorce, such as unreasonable behaviour or adultery.
Something else that isn’t widely known is that no-fault divorce is now an entirely digital process, removing the possibility for paper applications.
These UK divorce law reforms, which also apply to civil partnerships, mean that couples will now be able to get divorced without one party having to lay the blame for the relationship breakdown on the other party.
So, now that the Divorce, Dissolution and Separation Act 2020 is here, what are the pros and cons of no-fault divorce?
No-fault divorce pros and cons UK
Before considering no-fault divorce pros and cons let us first look at the key differences between the old and new divorce laws in the UK for England & Wales.
To get divorced in England and Wales before no-fault divorce became law, the matrimonial order (divorce application) had to state that there was an irretrievable breakdown of the marriage. This assertion needed to be backed-up using one of the following five possible “facts” or grounds for divorce:
- Examples of unreasonable behaviour
- Living apart for more than two years (with agreement)
- Living apart for more than five years (without agreement)
- Desertion (where one spouse has deserted the other for at least 2 years)
In practice, many divorcing couples would simply choose “unreasonable behaviour” or “adultery” by default, to avoid waiting for the length of time required by the other facts before filing for divorce.
Arguments for no fault divorce
Here then lay the problem with the old divorce law. Both of the chosen grounds, unreasonable behaviour or adultery, apportion blame on one party – even if there was no adultery or unreasonable behaviour.
The concept of no-fault divorce therefore is to enable a couple to get divorced without being forced to use any facts which imply that either party is to blame for the breakdown of the marriage. Effectively ending the “divorce blame game” that was endemic in England & Wales.
Various other countries have already adopted the concept of no-fault divorce.
In Scotland, the current system comes close, with the ability to get divorced with just one year of separation if the other spouse consents (or else two years of separation). Find out more about Scottish Divorce Law.
What are the grounds for divorce UK?
Under this new UK divorce law, the requirement to specify one of the five “grounds for divorce” is replaced with a “statement of irretrievable breakdown”.
Either or both divorcing parties will now be able to file this statement, and there will be a minimum timeframe of 6 months from the application stage to the final divorce.
Although the irretrievable breakdown of marriage is retained as the sole ground for divorce, there is no need for blame to be apportioned to either party under this new divorce process.
Furthermore, the new law also removes the ability for either party to contest the divorce. This will serve to minimise any delays to the divorce process, and further reduce waiting times.
The divorce process will still proceed in two stages, but the formal order of divorce stages has new names; decree nisi is now referred to as the conditional order of divorce, and decree absolute is now called the final order of divorce.
Pros and cons of the no fault divorce law
- The removal of fault from the divorce process – The most significant change to the divorce law is the removal of fault from the divorce process as divorce can now be granted without one spouse blaming the other. Divorces are now granted only on the basis that the relationship has irretrievably broken down.
- Joint applications for divorce can be made – The old divorce law required that one party (called the petitioner) issued divorce proceedings against the other party (called the respondent). Under the new divorce law, a divorce application can be made individually by either party or as a joint application.
- Introduction of a minimum timeframe – A minimum period of 20 weeks from the application being made to the divorce being granted, called a ‘period of reflection’ is now mandatory. This is to provide the opportunity for couples to resolve any issues, including a divorce financial settlement before proceeding to a divorce.
- Divorce can no longer be contested – In the past, if one party submitted a divorce petition citing either the behaviour of their spouse or following a two-year period of separation, it was possible for the other party to contest the application. Under the new divorce laws, this will no longer be possible. This should reduce the likelihood of long and acrimonious legal proceedings, which take up valuable court time, resulting in divorces being concluded in a timelier manner.
- Failure to hold partners accountable – The greatest condemnation of the no-fault approach is that the new law prevents the aggrieved party from holding their partners accountable for unreasonable behaviour or adultery within the relationship. In cases where one partner has been solely responsible for the breakdown of the marriage due to abusive behaviour or infidelity the no-fault approach allows them to divorce without ever being held accountable.
- Fewer couples could end up sharing pensions – It has been argued that the new no-fault divorce rules could result in fewer divorcing couples sharing pensions. The reduction in waiting times, combined with the removal of the ability to contest the divorce could lead to financial settlements being rushed through without considering pension sharing arrangements.
- No fault divorce can devalue the marriage vows – The new laws undoubtedly make divorce more accessible, and it is claimed this can devalue the taking of marriage vows, encouraging couples to marry on impulse, knowing that they can easily divorce at the first sign of trouble or difficulty.
How will no-fault divorce change things for married couples?
The new divorce rules should generally make it easier for married couples to get divorced. As soon as either party wants to end the marriage, they will be able to do so, without having to prove to a court why the relationship has broken down.
According to advocates of the change, including the former President of the Supreme Court, Baroness Hale, the reforms will help to reduce the distress of divorce. This should, in turn, enable both parties to successfully negotiate their separation and move on with their lives with less rancour.
The hope is that the reforms will encourage divorcing couples to direct their energies to the practical issues of the proceedings while also saving money in legal proceedings and fees.
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