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What to Expect from the New “No-Fault” Divorce System

September 2021

After years of campaigning from supporters, The Divorce, Dissolution and Separation Bill finally became an Act of Parliament on 25 June 2020 and is due to come into force on 6 April 2022. As the title suggests, in a “no-fault” divorce, neither party will have to assign blame to their former partner for their divorce to be legally finalised; a hugely significant change to divorce legislation which could see a reduction in conflict and acrimony in many cases going forward.

Current Divorce Law

Under the current law in England and Wales, there is only one ground for divorce: the irretrievable breakdown of the marriage. In order to petition for divorce the petitioner (i.e. the person who applies to the court for the divorce) must rely on one of the following five facts:

  1. Adultery;
  2. Unreasonable behaviour;
  3. Desertion;
  4. Two years’ separation with consent (i.e. the other spouse must agree to the divorce); and
  5. Five years’ separation (no consent required)

Facts 1-3 are fault-based and 4-5 are no-fault-based. The only way to obtain a divorce without attributing blame is to wait two years (however your spouse’s consent is still required) or five years. As most couples do not wish to wait, this means that at present there is practically no way to divorce without assigning blame to one spouse.

As a result, most divorce petitions rely on adultery or unreasonable behaviour. Even though there are ways to avoid raising the tension, this can cause unnecessary conflict and can result in one party defending the divorce petition. Whilst defended petitions are very rare, the current system does allow spouses to apply to defend or cross-petition.

The New Divorce Law: What are the Changes?

Once the Act comes into force, the key amendments will be:

  1. The ground for the irretrievable breakdown of the marriage will remain but the facts will not be required;
  2. The five facts will be replaced with the option of one spouse confirming by way of a statement that the marriage has irretrievably broken down;
  3. You and your spouse as a couple can jointly apply to make a statement for divorce; and
  4. If your spouse does not agree to the divorce, they will not be able to contest it.

What Will the Procedure for a No-Fault Divorce Look Like?

You can petition for divorce either jointly or individually. Upon receipt of the divorce petition, the court dealing with the application will take the statement in support of the petition to be conclusive evidence that the marriage has broken down irretrievably.

The new system will have a minimum 20-week period from when the petition has been issued to confirm that the conditional divorce order (currently the Decree Nisi) has been made. Following this, the Final Order (currently Decree Absolute) can be applied for.

Should I Wait for the No-Fault Divorce to Come into Effect?

The answer to this question is entirely dependent on your current situation. If you and your spouse are on amicable terms and decide to live separately until the new system has come into force, then it could be a good idea.

However, you should bear in mind that the Court cannot make a financial order (even if it is by agreement of the parties) unless the divorce proceedings have been issued and the Decree Nisi granted. Therefore, waiting to divorce is not an option for many and the process of starting a new chapter and moving on often only happens once parties are no longer married.

If you are considering divorcing your spouse or have any questions relating to this article, please do not hesitate to contact us.