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No-fault Divorce is almost here, what is it and why does it matter?

No-fault divorce will be introduced in England and Wales on 6 April 2022. The government’s Divorce, Dissolution and Separation Act 2020 will remove the longstanding fault-based facts on which you can currently rely upon to divorce or dissolve your civil partnership.

Current law

Currently, a person petitioning for a divorce must blame their spouse for the irretrievable breakdown of their marriage or wait a minimum of two years. The current fault based facts on which you can rely on are adultery, unreasonable behaviour or desertion (this is rarely used). Alternatively, if you have been separated for two years you can petition for divorce provided your spouse gives consent otherwise you have to wait five years.

This can be unattractive for many couples who know their marriage is over but do not want to lay blame at each other. Doing so can cause unnecessary conflict and animosity between the parties and add fuel to what can be an already roaring fire.

Except in extreme circumstances, the reason for the divorce has no impact on the outcome of financial proceedings. In fact it can create tension from the outset and make an amicable financial settlement less likely. It may also hamper ongoing relationships and affect the parties’ ability to co-parent.

Changes to the law

The new legislation will replace the five facts with a new requirement to provide a statement of irretrievable breakdown. This statement can be provided by either or both parties and the sole ground for obtaining a divorce will be the irretrievable breakdown.

It will no longer be possible to contest a divorce other than on a jurisdictional basis. This will only be relevant for international cases.

There will also be a shift in the language used to make the process more accessible. The traditional Latin phrases Decree Nisi and Decree Absolute will be removed and replaced with Conditional Order and Final Order of divorce.

The process will also change. Parties will be able to petition individually or jointly. The option for a joint application is more complex as the second applicant is required to review and approve the first applicant’s answers in the petition. It will then be sent back to the first applicant to confirm and pay the court fee. Only the first applicant can pay the court fee, however it is hoped that if the parties are amicable enough to enter a joint petition they will be able to agree on how the fee is shared.

Timescales

The timeframe to obtain a Final Order of divorce will be a minimum of 20 weeks from the start of proceedings. This allows the parties an opportunity to reach an agreement on the financial issues between them and, in some cases children matters. It also gives the parties time to reflect and reconcile should they wish.

The imposed timeframe combats any speculation that this reform will make divorce a quicker and easier option for separating couples.

Conclusion

This is a very welcome and long-awaited change. Divorce is never easy but the changes to the law should reduce unnecessary conflict and costs for couples. It will allow couples to divorce without blame which should, in turn, ensure they are focused on the financial issues between them and any children matters.

If you are considering starting divorce or dissolution proceedings or have received notification from your spouse and would lie to discuss your situation with a legal expert, please contact our Family team. We offer a free initial discussion so that you can understand your options. 

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