No-Fault Divorce – The Benefits and Drawbacks
Married couples in England and Wales could soon find divorce proceedings quicker and less acrimonious under a no-fault divorce system.
Under the new law, it allows for a divorce without either party attributing fault or lengthy separation periods.
In effect, it removes the adversarial basis of many divorce cases, leading many to call it the biggest change to divorce law in 50 years.
In this article, we’ll explain how no-fault divorce will change how couples go about getting a divorce and the potential benefits and drawbacks of the new legal system.
What Is No-Fault Divorce & When Is It Coming To The UK?
A no-fault divorce is a divorce procedure that does not apportion blame to either party. A divorce can be started by either party and in some countries, it can be done jointly.
Under the current divorce law, the only way to get a divorce without a statutory delay is if one spouse not only initiates proceedings but alleges fault on behalf of the other.
This fault can be established with the court by using one of three reasons for divorce:
- Adultery – If you can prove adultery, you simply need to say you find it intolerable to live together.
- Unreasonable Behaviour – In this case, the court has to agree the behaviour makes it unreasonable to expect you to continue living together. Courts have imposed a high threshold, often requiring serious, specific examples.
- Desertion – This can make for particularly complicated legal proceedings. While there’s no statutory delay to the process itself, you can’t start until two years after the desertion.
If you can’t or won’t allege one of these faults, you can only get divorced once you’ve been separated for two years if both spouses agree to the divorce, or five years if one spouse refuses.
Supporters of the changes argue the current system has several major flaws. For example, if a couple wants a quick divorce without delay, they must agree between themselves who will “take the blame.”
Even if it’s just a legal formality, working out who this should be and the details to present to the court can be an awkward and emotional process.
It can even lead to resentment that spills over into the negotiations about financial settlements and childcare. Indeed, part of the problem is that many people mistakenly believe that admitting to or being held at, the fault will affect a court’s decision on dividing assets.
Of course, not every couple will have the option to avoid this confrontation by going down the separation route.
Many find that it simply isn’t financially viable to live as two separate households for two years before starting divorce proceedings and formally reaching a financial settlement.
Another problem is with cases where one spouse no longer wants to be in the marriage but the other refuses to accept it is over.
The high bar for proving unreasonable behaviour means one spouse can often drag out the divorce until not only has the other left the marital home, but five years have passed.
This is exactly what happened in a case known as Owens vs Owens where the Supreme Court confirmed the current law.
The Justices noted that while the refusal to allow the divorce was legally correct, it left the wife “trapped in [a] loveless marriage.” They specifically suggested Parliament revisit the issue.
Common Questions About No-Fault Divorce
- When will no-fault divorce become law in the UK? The UK Parliament passed the divorce and Dissolution Act in 2020 after much debate and it will more than likely come into effect sometime during the Spring of 2022 after COVID-19 related delays. The Court Service needs to create the regulations and systems needed to put the Act into effect. This law only applies to England and Wales.
- Can you get a no-fault divorce online? Yes, you can get a no-fault divorce online at the present time as there is the option to divorce after 2 years if you both consent. This does however require the consent of both parties, whereas, with a true no-fault divorce, no one can object to the divorce.
- What is the main benefit of no-fault divorce? The main benefit of a no-fault divorce is the parties do not need to make any allegations about the other person and this is hoped will reduce acrimony and allow the parties to separate and deal with their finances and children in a more constructive manner.
- Is it worth waiting for the law to change before filing for divorce? With the actual processes unlikely to be in place before October 2021 at a minimum, it may be too long for some people to wait to file for their divorce, especially if they have been separated for some time.
What are the benefits 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 the irretrievable breakdown of the marriage, fit with the real reasons for divorce.
Furthermore, insisting on the apportionment of blame for marriage breakdown can hinder the parties from 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.”
The Key Facts About The No-Fault Divorce Law Changes
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 grounds for divorce with a ‘statement of ‘irretrievable breakdown’ – thereby eliminating the requirement to administer any blame.
The delay is to allow time to revise existing court forms, online processing and other administrative tools.
The basis of the new law remains the same: divorce is only possible when a marriage has irretrievably broken down. However, the definition of an irretrievable breakdown has expanded through two key changes.
The first change is that divorce proceedings no longer have to be initiated by one partner alone.
Instead, a couple can make a joint application. While that may seem like a technical measure, supporters of the new law argue that it removes an in-built imbalance that undermines attempts to split amicably.
The second change is that the current list of five permissible ways to prove the breakdown (adultery, unreasonable behaviour, desertion, agreement after two years’ separation, one party request after five years’ separation) have been replaced by a single mechanism.
Now all that’s required is for at least one spouse to provide a legal statement to say the marriage has broken down irretrievably. This statement counts as conclusive evidence and cannot be contested.
The law does also allow for a joint statement, again increasing the opportunities for a mutual split to avoid artificial imbalances.
The relevant laws on the dissolution of a civil partnership will also be updated. The idea is that broadly the same system and principles, complete with the no-fault declaration of irretrievable breakdown, will apply to both divorce and dissolution.
Parliamentarians also took the opportunity to modernise and simplify some key legal terms in the divorce process;
- The “petitioner” will now be the “applicant”.
- The “decree nisi” will now be called a conditional order”
- And finally, the “decree absolute” will be called a “final order.”
That’s the latest step in a 20-year program of changes to make the language of civil courts more accessible.
Is a no-fault divorce going to speed up the divorce procedure?
While the new law will remove some delays (particularly in amicable divorces), it’s not a case of “instant divorce” as the measures have a built-in cooling-off period.
The law lays down a minimum allowable period of 20 weeks between the initial application and the conditional order, and another six weeks between the conditional and final orders.
That means that even the smoothest divorce will take at least six months to complete. How long does a divorce take now?
The government says this minimum period not only gives an opportunity for couples to reconcile but also gives breathing room to discuss practical arrangements if the split is inevitable.
If you have any questions about the new divorce laws or want to explore your options before they take effect, please feel free to contact us.
Call us on 01793 384029 and speak to one of our professional and friendly divorce advisors today who will be more than happy to help you.
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