The Divorce, Dissolution and Separation Act 2020 is the biggest change to the divorce system in decades. It comes into force today, 6th April 2022, and allows for no-fault divorce. This means that neither party in divorce proceedings will now need to prove that the other party is to blame or at fault for the breakdown of the marriage.
What was divorce like before no fault divorce?
Previously, a divorce would only be granted if the court was satisfied the marriage had irretrievably broken down. Even if both parties agreed that the marriage was over and that neither spouse was at fault (or both were equally at fault), one party had to be shown to be to blame unless they were prepared to wait for a period of at least two years’ separation to have passed.
To show that marriage had irretrievably broken down the petitioner would have to rely upon one of five facts.
What were the five facts?
The five facts , one of which had to be relied upon to show that the marriage had irretrievably broken down, were as follows:
- Behaviour - this was one of the most common grounds for divorce and required the petitioner to cite examples of the respondent’s behaviour that meant it would be unreasonable 2 expect the petitioner to remain married to the respondent.
- Adultery - this required one party to have committed adultery, the other party to cite this, and for that adultery to either be admitted or proven.
- Two years’ separation and consent - this required the parties two have been living separately for a minimum of two years and for the respondent to consent to the divorce.
- Five years’ separation - this required the parties have been living separately from minimum of five years but no consent from the respondent was required.
- Desertion - This required the respondent to have deserted the petitioner for at least two years.
What is no fault divorce?
With no fault divorce the applicant (previously known as the petitioner) must simply make a formal statement that the marriage has irretrievably broken down. No further detail or justification for the breakdown of the marriage is required.
Who can apply for no fault divorce?
Either spouse can apply as a single applicant for a no-fault divorce. Where this is done the other party to the marriage is the respondent to the divorce application.
It is also now possible for both parties to the marriage to apply jointly for a divorce. When this is done there are two applicants, and they may both be represented by solicitors or only one party may be represented. It is, of course, also possible to issue an application for divorce with neither party being represented.
How does no-fault divorce work?
- One or both parties to the marriage makes an application to the court on the basis that the marriage has irretrievably broken down.
- If only one party to the marriage is applying for the divorce the other party will be given formal notice that the application has been made within 28 days.
- After a minimum of 20 weeks the applicant, or applicants, confirm that they wish to proceed with the divorce and invites the court to grant the conditional order (comparable to the previous decree nisi).
- After a further minimum period of six weeks and one day the final order (comparable to the decree absolute) may then be applied for and granted by the court. This is the court order that ends the marriage.
What are the benefits of no-fault divorce?
- No-fault divorce is intended to remove much of the acrimony involved in divorce proceedings.
- There is no need to set out personal details about the breakdown of the relationship.
- Both parties are able jointly if they wish to do so.
- Respondents are not able to challenge the divorce except on certain specific, limited, grounds.
What else do I need to consider alongside a no-fault divorce?
When a couple are separating or going through divorce, they do need to consider other issues that arise. These will normally include the settlement of matrimonial finances and the determination of arrangements for the children.
The introduction of no-fault divorce does not change how either of these matters are dealt with. It does, however, remain the case that it would be best practice to consider both these matters fully at this time. A divorce does not bring a couples’ financial obligations to each other to a conclusion. This must be dealt with separately, often by way of a financial consent order. Arrangements for children should, wherever possible, be agreed between the parties but if that is not possible then we can assist with consideration of how else these matters may be addressed.
It is to be hoped that the less acrimonious no-fault divorce process will leave couples in a better position to discuss the associated issues relating to children and financial matters. Both are matters that that we are available to assist with. If you have any questions regarding no fault divorce or associated matters please do not hesitate to contact the dedicated family team here at Scott Rowe
