Pros and Cons of Waiting for a No Fault Divorce
At the moment, if a married couple decides to get divorced in England and Wales, they must specify a reason why the marriage has broken down.
It is widely expected that the new law for divorce “No-fault Divorce UK” will come into effect in England and Wales on 6th April 2022 – The forthcoming new divorce laws will dispense with the requirement to provide a reason for the relationship breakdown, thus enabling a no-fault (or no-blame) divorce.
In this simple guide, we will explain the meaning of no-fault divorce and consider the pros and cons of whether a divorcing couple should wait for the new rules before proceeding with the divorce.
What Is No-Fault/No Blame Divorce?
To get divorced in England and Wales, the matrimonial order (divorce application) must state that there has been an irretrievable breakdown of the marriage.
This assertion needs to be backed up with one of five possible “facts”:
- 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 end up choosing “unreasonable behaviour” or “adultery” by default, as they do not wish to wait for the length of time required by the other facts before filing for divorce.
The problem is that these two “facts” apportion blame on one party – even if there was no adultery or unreasonable behaviour.
The concept of no-fault divorce enables 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.
In other words, a no-blame divorce allows a couple to get divorced without stating any particular reason for the failure of the marriage.
Various 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).
What is the upcoming no-fault divorce law?
Although there is currently no provision for no-fault divorce in England and Wales, there are plans to introduce it in the Spring of 2022.
The government announced the Divorce, Dissolution and Separation Bill in 2019. Under this new law, the requirement to specify one of the five “facts” will be replaced with a “statement of irretrievable breakdown”.
Either or both divorcing parties will be able to file this new statement, and there will be a simple minimum timeframe of 6 months from the application stage to the final divorce.
Although the irretrievable breakdown of marriage will be retained as the sole ground for divorce, there will be no need for blame to be apportioned to either party under this new system.
The new law also removes the ability for either party to contest a divorce. This will serve to minimise any delays to the divorce process, and further reduce waiting times.
The Divorce, Dissolution and Separation Bill gained Royal Assent in June 2020 and is due to come into force on 6th April 2022.
What are the benefits of waiting for a no-fault divorce?
In the case of divorcing parties who are still living together, it will be necessary for one of them to accept “blame” under the current system – either of adultery or unreasonable behaviour.
If neither party is prepared to accept this blame, it may be best to wait until a no-fault divorce is possible.
Equally, if only one spouse wants to get a divorce and it is likely to be contested by the other party, it will probably be better to wait for the new rules.
Under the new rules, it won’t be possible to contest a divorce, which can currently lead to long delays and legal wrangling.
Arguments against waiting for a no-fault divorce
If both spouses agree to the divorce, and one party is willing to accept the “blame”, there is little point waiting for the new rules.
This will just unnecessarily delay the divorce.
Although the no-blame divorce rules are expected to come into force in spring 2022, it is possible that there could be issues that lead to further delays.
The court system already has a backlog of cases, so waiting for a divorce to get processed under the new rules may simply mean a longer wait until you can remarry or move on with your life.
The divorce procedure will take a minimum of 6 months to complete when no-fault becomes law, so you could be putting off dealing with your divorce by over 12 months.
How will no-fault divorce change things for married couples?
The new rules being brought forward 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 why the relationship has broken down.
Currently, the need to apportion blame in order to obtain a divorce can make either divorcing party reluctant to apply for a divorce until they have been living apart for two years.
This can end up prolonging a bad marriage.
The current five reasons for divorce simply do not reflect the reasons why modern marriages fail.
Furthermore, being forced to choose either of the facts which apportion blame can end up causing more arguments and even hindering agreement on a divorce settlement.
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