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No Fault Divorce – What is it?

When a couple wants to get divorced in England and Wales, they must first decide on a particular reason for divorce and specify this in the divorce petition form during the filing process.

Although there is only one overall reason (or ‘ground for divorce’), namely that the marriage has irretrievably broken down, there are currently five possible facts which establish this reason, and one needs to be chosen and specified

The 5 possible grounds for divorce are:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Living apart for more than two years (with agreement) and
  • Living apart for more than five years (without agreement). 

These ‘facts’ are often criticised as being archaic and out of step with current society. Modern divorcing couples often want to separate for other reasons which do not fit into any of these categories (eg falling out of love) where no one is necessarily at fault. In many cases, where none of the grounds apply, ‘unreasonable behaviour’ is used as a nominal ground to proceed with the divorce application.

What is no fault divorce?

Many countries around the world allow their citizens to file for divorce without any requirement to specify a reason or fact which implies fault or blame; this is known as ‘no fault divorce’.

Countries which provide for no-fault divorce include Canada, Australia and the USA, whilst the ground of ‘mutual consent’ can be used in divorce filings in a wide range of jurisdictions from France and Italy to Japan.

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How does no fault divorce work?

Obtaining a no fault divorce will depend on the specific rules, but it is generally a matter of going through the relevant divorce filing procedure and simply ticking the ‘no fault’ box (or equivalent). Sometimes the divorce needs to be uncontested (ie both husband and wife must agree to getting divorced) but this is not always necessary.

Resolution, a membership organisation for family law professionals, proposes a no fault divorce procedure for England and Wales: “where one or both partners can give notice that the marriage has broken down irretrievably. The divorce can then proceed and, after a period of six months, if either or both partners still think they are making the right decision, the divorce is finalised.

What is the benefit of no-fault divorce?

It is generally accepted that no-fault divorces better reflect modern relationships. Often none of the five ‘facts’ currently available, which need to be specified as evidence of irretrievable breakdown of marriage, fit with the real reasons for divorce.

Furthermore, insisting on the apportionment of blame for marriage breakdown can hinder the parties reaching a divorce settlement and may be detrimental to mediation, as well as affecting any children involved.

Commenting on the forthcoming adoption of no fault divorce in England and Wales, Aidan Jones OBE, Chief Executive at relationship support charity, Relate said:

This much-needed change to the law is good news for divorcing couples and particularly for any children involved. The outdated fault-based divorce system led parting couples to apportion blame, often resulting in increased animosity and making it harder for ex-partners to develop positive relationships as co-parents.

Can I get a no fault divorce in the UK?

No. There is currently no provision for no-fault divorce in the UK.* 

However there are plans to introduce the concept of no-fault divorce to England and Wales soon. In June 2020 Parliament passed the Divorce, Dissolution and Separation Act 2020 which is now an act of Parliament. It is expected that the new procedures and rules will come into force sometime in the second half of 2021.

The new law will retain the irretrievable breakdown of a marriage as the sole ground for divorce. But it will replace the requirement to specify one of the five ‘facts’ (eg adultery, unreasonable behaviour etc) which establish this ground, with a ‘statement of irretrievable breakdown’ – thereby eliminating the requirement to administer any blame.

It will be possible for one or both parties to file this statement. Furthermore, the legislation will remove the possibility of contesting the divorce. 

Commenting on the progression of the bill to the House of Lords in January 2020, Justice secretary Robert Buckland said:

The institution of marriage will always be vitally important, but we must never allow a situation where our laws exacerbate conflict and harm a child’s upbringing. By sparing individuals the need to play the blame game, we are stripping out the needless antagonism this creates so families can better move on with their lives.

* Scotland has a system which comes close to no fault divorce: the overall ground of irretrievable breakdown of marriage can be proved with one year of separation if the other spouse consents, or else two years of separation.

If you are looking to divorce using a no-fault based divorce  you are able to start your divorce now using the 2 year separation fact, providing you have been separated for 2 years or more and are in agreement.

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No-fault Divorce UK FAQs

Is it worth waiting for no-fault divorce to come in?

The simple answer is no, there is still no clear evidence that the bill will pass & if it does there is no timeframe as to when this will take place.

In short if you are thinking of waiting, be prepared to wait a long time.

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