A Guide To No-fault Divorces

Divorce law in England and Wales has long been criticised for forcing couples into the difficult decision of either waiting at least two years to apply for a divorce, or blaming each other for the breakdown of their marriage.

From April 2022, in what the government is dubbing the “biggest shake-up of divorce laws in half a century”, no fault divorces will come into effect in England and Wales.

How do divorces work at the moment?

Currently, anyone wanting to obtain a decree of divorce must establish the “grounds” for divorce, namely that their marriage has broken down irretrievably, by proving one or more of five ‘facts’.

Three of these are based on fault:

  • Adultery
  • Unreasonable behaviour
  • Desertion

Two are based on a period of separation:

  • Two years’ separation (with consent from the other spouse)
  • Five years’ separation (no consent necessary)

So those wishing to divorce are left with the choice of either waiting or blaming their spouse in order to file a petition.

No fault divorce: what will change next year?

The Divorce, Dissolution and Separation Bill, first introduced in June 2019 after a public consultation, will remove the need to blame the other party by enabling one spouse – or the couple together – to make a “statement of irretrievable breakdown”. This is why it is being called ‘no fault divorce’, as there will be no need to attribute fault to the other party in order to file for divorce.

The five facts identified above will no longer need to be proved.

As alluded to above, it will also be possible for the couple to make a joint divorce application, something which is not an option under the current legislation.

A ‘period of reflection’ of 20 weeks will be introduced between the application and the final divorce papers, to take into account concerns that introducing no fault divorces would make it too easy to divorce rather than work towards saving a marriage.

The two stages of the divorce process – Decree Nisi and Decree Absolute – will be renamed “conditional order” and “final order” respectively, in order to make the process more accessible for litigants in person.

The new legislation will remove the option to contest a divorce, thereby saving couples from a public and contested hearing.  However, it will still be necessary to ensure that the finances and any issues affecting the children of the family are properly resolved either with the assistance of the Court or through alternative means of dispute resolution.

The new legislation will not affect the current laws regarding financial provision on divorce and child arrangements but merely simplify the divorce process itself.

If you are considering a divorce and would like to discuss the current or future divorce process in England and Wales, get in touch to book your free consultation with one of our experienced divorce lawyers today.

Neil Graham, a Partner at Grayfords comments as follows:  “The current legislation governing the process of divorce dates from 1973.  Much has changed since then which, when combined with the 2018 Supreme Court case of Owens, has finally been the impetus for change in the form of the Divorce, Dissolution and Separation Bill.  Once the new legislation comes into effect in April 2022 neither party will need to make allegations about the other as part of the process of bringing the marriage to an end.  It will be possible for both parties to look forward to their lives independently of each other in the future without having to dwell on their life together in the past. It also means that the divorce process itself will be much simpler which will enable the parties to concentrate their resources on resolving the financial aspects and agreeing the best arrangements for their children whether via mediation or with the assistance of expert advisors.”

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