No-Fault Divorce: what it means and how it affects you

The Government’s new Divorce, Dissolution and Separation Act 2020 will reform the divorce process to remove the notion of “fault.” It is commonly accepted amongst practitioners that the current divorce law is outdated and is unreflective of modern relationships.

The sole ground under which couples can divorce in England and Wales is the irretrievable breakdown of the marriage, based upon 1 of 5 facts;-

1. Adultery;
2. Behaviour;
3. Desertion;
4. 2 years separation with consent;
5. 5 years separation without consent.

If you cannot or do not want to allege that your partner has committed adultery or acted unreasonably, under the current divorce laws you will have to wait 2 years until you can start the divorce process. Even then, both parties will need to agree that the marriage has irretrievably broken down. At present, if a couple is wanting to divorce without delay, they must decide between themselves who will take the blame. Not only can this cause additional conflict between the parties, but it can be an emotional and stressful process.

While the reason for divorce does not affect the division of assets or arrangements for the children, residual stress and resentment from the divorce proceedings may spill over into these negotiations, making the process difficult and expensive. A common misconception is that “fault” or “blame” will materially impact a financial settlement. Unfortunately, bad behaviour or conduct is rarely taken into account when calculating a financial settlement. This is often difficult for the parties to process. When a person feels as though they have been wronged, it is natural to presume that there will be some consequence for the other party. This is not how the courts operate and assigning blame creates an unnecessary distraction during the divorce process.

Reforms

The new law will retain the irretrievable breakdown of a marriage as the sole ground for divorce. However, the new legislation will;-

• Replace the 5 facts with a new requirement to provide a statement of irretrievable breakdown – this will inevitably reduce conflict, allowing couples to focus on more important issues like children, property and finances, rather than getting caught up in the “blame game.”
• Remove the possibility of contesting the divorce – if at least one of the parties provides a legal statement to say that the marriage has irretrievably broken down, this counts as conclusive evidence and cannot be contested;
• Introduce an option for a joint application – supporters of the new reforms consider that ability to make a joint application removes an in-built imbalance that undermines attempts for couples to remain amicable;
• Make sure language is in plain English; for example, changing “Decree Nisi” to conditional order and “Decree Absolute” to final order.

These changes will also apply to the dissolution of civil partnerships.

What does this mean for solicitors?

The proposed changes should simplify the divorce process and reduce conflict between separating couples. These changes are designed to be easy for solicitors to implement.

A common misunderstanding is that the no-fault divorce will speed up the divorce process. It is not a case of “instant divorce” as the reforms have built in a cooling-off period. There will be a minimum allowable period of 20 weeks between the initial application and the conditional order, and another six weeks between the conditional and final orders. Simply, this means that even the most straight-forward divorce will take at least 6 months to complete.

The new reforms have not yet come into force, it is expected that the changes will be implemented in Autumn 2021.

The new law does not change the rules on financial settlements or child arrangements. This means that expert legal advice is still vital for anyone going through the divorce process.

If you require any legal advice in respect of divorce, finances or child arrangements, our family team will be happy to help. Please contact us on 01228 552222 or enquire through our website www.burnetts.co.uk.