Out with the old and in with the new: the new “No-Fault Divorce” rules are no April Fools’

read time: 7 mins

Divorce law as we know it is set to change from 6 April 2022 as new legislation comes into force which aims to simplify the divorce process for separating couples.

The long-awaited changes represent the biggest shake up to divorce law in almost half a century and will entirely remove the requirement for separating couples to blame the other for the breakdown in the marriage (i.e. to prove fault).  

But what do the changes mean in practical terms? And what do separating couples need to know in 2022 and beyond?

The current law (pre 6 April 2022)

The existing law requires a party to prove that the marriage has broken down irretrievably with reference to one of the “five facts” in order for a divorce to be granted. This has been the case since the Matrimonial Causes Act was introduced back in 1973.

However, whilst two of these five facts are based on periods of separation - being two years’ separation with the consent of the other party or five years’ separation where the other party will not consent - the remaining three facts are based on fault.

This means that, in effect, the majority of separating couples will have little choice but to blame their spouse for the failure of the marriage either due to their adultery, desertion or unreasonable behaviour. This remains the case even where the decision to part ways was entirely mutual. As you can imagine, this can be a source of unnecessary conflict, and in a society where 42% of marriages sadly end in divorce, the law could be said to have failed to have moved with the times.

The law was no longer fit for purpose and this was aptly demonstrated by the case of Owens v Owens in 2018. This was a case which captured the public’s imagination, with Ms Owens becoming something of a cause celebre for divorce reform campaigners.

For those not in the know, Ms Owens had applied for a divorce on the basis that her marriage had broken down irretrievably as her husband had behaved in such a way that she could not reasonably be expected to live with him (i.e. on the fact of her husband’s “unreasonable behaviour”). However, Mr Owens had defended the divorce, opining that the marriage had not broken down irretrievably and denying her allegations.

Ms Owens eventually appealed to the Supreme Court after being refused a divorce by the family court and the Court of Appeal. However, her appeal was unanimously rejected by the justices who criticised the current law but ultimately ruled that reforming the law would be a matter for parliament. This judgement caused an outcry in the national press as it meant that Ms Owens would have to remain in what she described as a “loveless marriage” until 2020 (when she would be able to apply for a divorce on the basis of 5 years’ separation without consent).

What has the new law changed?

The new law will remove the requirements to prove fault entirely. Instead the parties will simply need to  provide a statement of irretrievable breakdown of the marriage or civil partnership. This statement can be provided by either or both parties and the sole ground for obtaining a divorce will be the irretrievable breakdown.

Removing the fault-based requirements will also likely remove some of the inherent differences in the way that heterosexual and same-sex marriages and civil partnerships are treated by the current law. For example, bizarrely the present divorce law only recognised adultery as taking place between members of the opposite sex. Under the present law, adultery is not recognised as a fact or reason for the dissolution of a civil partnership whatsoever. In same sex marriages, a party can only rely on the fact of adultery when applying for divorce if they can prove that the infidelity had involved a member of the opposite sex. This was a source of upset for a great deal of same-sex couples who felt that the law had invalidated their experience of infidelity. By removing this fact entirely, both heterosexual and same-sex couples are treated the same.

For the first time ever, it will be possible for parties to apply for a divorce or dissolution of civil partnership together; the symbolism of such an application may be attractive for couples who have taken the mutual decision to end the marriage together. It should be noted, however, that this process is more complex as the application will need to be reviewed and agreed by both parties.

The new law will also remove the ability for the other party to defend the decision to divorce or end the civil partnership, except on very limited grounds including jurisdiction (where an international element applies). Whilst defences to divorces were rare, they could be misused by parties who simply wanted to trap the other in the marriage and very rarely did they “save” a marriage from divorce.

The language had also been simplified and the Latin phrases of Decree Nisi and Decree Absolute will be removed and replaced with Conditional Order and Final Order of Divorce. The aim of this is to make the law more accessible and user-friendly.

Finally, and perhaps most controversially, a new timeframe will be implemented which will introduce a minimum of 20 weeks from the start of proceedings to obtaining the Final Order of divorce. The rationale for this is to enable the parties to reflect on their decision to divorce, and to consider whether a reconciliation is possible. Importantly this will also allow the parties an opportunity to try and resolve their financial claims. However it does mean that an opportunity had been missed to expedite and speed up the divorce process which is already considered to be an unnecessarily protracted process.

Key dates for separating couples

Whether you’re using a  solicitor or applying for a divorce yourself, please remember the following key dates will apply to the introduction of the new law:

  • 4pm on 31 March 2022. This is the cut off point for applications under the existing law and digital and paper services. If you are contemplating separation and do not wish to wait until 6 April, you will need to move relatively quickly. If you have already started a paper application and wish to proceed with this, you will need to ensure it has been received by the Court before this date.
  • From 31 March to 5 April 2022 the digital service will not accept new applications and you will no longer be able to apply under the current law or digital systems.
  • From 6 April 2022 the new paper and digital services will be available.

Please note that urgent applications which are time critical (e.g. where there is a dispute as to the appropriate jurisdiction for the divorce or for a freezing injunction) will still be considered. However, such applications will usually require expert legal advice.

Word of caution

It is hoped that the new law will simplify the divorce process and better reflect today’s societal attitudes to divorce to enable separating couples to focus their minds on resolving their finances (and any matters involving children) in an amicable and constructive fashion.

However, the changes may lead to a further increase in “DIY Divorces” whereby couples attempt to conclude their divorce without obtaining any legal advice. It is important to note that the divorce process will not, of itself, resolve the financial matters and/or protect you against future financial claims from your spouse.

Further, if you obtain a Final Divorce Order before you have agreed a financial settlement then you may inadvertently waive your entitlement to certain assets to which you may have otherwise been entitled.

For that reason, early access to expert legal advice will remain crucial to resolving such matters successfully.

If you are considering starting divorce or dissolution proceedings, or if you have any questions regarding the issues outlined above, please contact our Family team. We offer a free initial discussion so that you can understand your options.

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