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Will No-fault Divorce Affect Financial Settlements

No-fault divorce has been introduced in England and Wales from April 2022, in accordance with the Divorce, Dissolution and Separation Act.

For the most part, the new no-fault divorce rules have generally been welcomed by divorcing couples and lawyers alike, since they tend to remove some of the negativity and acrimony associated with the old system and reduce the likelihood of legal conflict.

Nevertheless, various questions have been raised regarding potential consequences of the new legislation. One of the concerns relates to the possible impact of no-fault divorce on financial settlements.

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    Frequently Asked Questions

    What is the role of a judge in no-fault divorce?

    Prior to the no-fault rules, contested divorces sometimes ended up going to court, where a judge would need to look at evidence and decide whether the alleged blame could be substantiated. In the case of adultery, for instance, they may need to consider witness statements regarding the alleged adultery.

    Following the introduction of no-fault divorce, the role of the judge in divorce proceedings will no longer involve determining the validity of grounds for divorce. Instead, their focus will be on achieving a fair financial settlement where the divorcing parties are unable to negotiate an agreement between themselves. This means that, although the divorce process will be more streamlined, since the reason for divorce cannot be contested, there can still be long delays due to legal arguments over the division of assets.

    NB: The government is currently being lobbied by several parliamentarians to review the laws governing financial provision in divorce, which remain unchanged because of the no-fault changes.

    What are the potential pitfalls of no-fault divorce for divorcing couples in relation to finances?

    The introduction of the aforementioned “reflection period” of 20 weeks under the new rules means that the overall divorce process can end up taking a lot more time than before. The resulting delay can mean that finances are more likely to change significantly during getting divorced (e.g., the value of the family home could rise by several thousand pounds in 20 weeks). No-fault divorce therefore potentially makes re-calculation and re-negotiation of division of assets during the divorce process more likely.

    Some commentators have warned that the removal of certain time-conditional elements of divorce under the previous regime (e.g., waiting for at least two years to use “separation” as a fact to establish irretrievable breakdown) could lead to more divorces being rushed through and certain assets being overlooked as a result.

    For example, a recent report from Steve Webb, a partner at LCP, and Rhys Taylor, a barrister at The 36 Group, argues that one potential impact of the new no-fault divorce rules could be fewer divorcing couples sharing pensions.

    What Are the Pros and Cons of No-fault Divorce

    We’ve outlined the pros and cons of no fault divorce in a separate article, which explains the law changes in more detail now the new law is passed.

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