No fault divorce: everything you need to know

The new legislation, which was originally proposed in 2019, will bring about long-awaited reforms to an area of law which hasn’t changed since the seventies.

From 6 April, separating couples will no longer have to rely on one of the ‘five facts’ to prove grounds for divorce.

What are the ‘five facts’ which prove grounds for divorce?

Until 6 April 2022, couples wishing to divorce must prove the irretrievable breakdown of their relationship by relying on one of the following:

• Unreasonable behaviour
• Adultery (not available for civil partnership dissolution)
• Desertion (for at least two years)
• Separation (for at least 2 years with consent from both parties)
• Separation (for at least 5 years if one party disagrees)

Under current legislation, unless relying on separation, one party must blame the other. If the other party disagrees with the divorce or the facts, the divorce can be contested.

Why does the law need to change?

Critics have long argued that current divorce laws are outdated and unnecessarily create conflict between couples.

In reality, most couples acknowledge the marriage is over and agree to separate, thus ensuring that courts can grant a divorce without the need to investigate the reasons.

Even where conflict exists, many couples feel blame is unnecessary; if one of the parties wishes to divorce, why should they have to prove their reasons for believing the marriage has broken down (or be forced to remain married) simply because the other party doesn’t accept responsibility for the breakdown?

How will the new no-fault divorce laws work?

From 6 April, the Divorce, Dissolution and Separation Act 2020 becomes law and will:

• Retain the sole ground of irretrievable breakdown of the marriage
• Remove the need to establish one or more of the ‘five facts’ all that will be required will be a statement of irretrievable breakdown
• Update divorce terminology, for example:
  • ‘Decree Nisi’ will become a ‘Conditional Order’
  • ‘Decree Absolute’ will become a ‘Final Order’
  • ‘Petitioner’ (the person submitting the divorce application) will become the ‘applicant’
• Allow joint applications where couples agree the relationship has irretrievably broken down.
• Remove the ability to contest a divorce, dissolution or separation because a party does not accept a marriage has broken down (although divorces can be challenged on procedural grounds)
• Introduce a new 20-week minimum period from the start of proceedings to when the ‘Conditional Order’ can be made
• Retain the current six-week period between the Conditional Order and when the Final Order can be made

What does no-fault divorce mean for separating couples?

• No more blame
• If both parties agree, they can make a joint application for divorce or dissolution, enabling them to have an amicable separation and share the cost
• No more worrying about whether one partner refuses to consent, saving time, costs and stress as there will no longer be a need to go to court
• Under the new time scales, most couples will have to wait around six months for their divorce or dissolution to finalise, allowing couples time for reflection and to consider whether they really wish to divorce
• During this period, couples will still be able to make arrangements to:
  • negotiate a financial settlement
  • agree maintenance payments (if applicable)
  • agree arrangements for any children of the marriage and ongoing parenting plans

Should you wait for the introduction of no-fault divorce rules?

If you are considering getting divorced now, both parties agree the relationship has irretrievably broken down and this can be proven, there is little advantage in waiting.

Whilst having to apportion blame is unattractive to many divorcing couples, it is largely symbolic and doesn’t affect the long-term outcomes of divorce such as the financial settlement and arrangements for children.

There are a few circumstances in which you may prefer to wait for a no-fault divorce. These include:

• You cannot rely on any of the five facts needed to prove irretrievable breakdown of the marriage. Under current law, you would have to wait five years to divorce without your partner’s consent, so waiting for no-fault divorce may help you divorce sooner
• You can rely on one of the five facts (e.g., adultery) but your partner intends to challenge your application and force you to court. After 6 April they won’t be able to, so you’ll be able to avoid the stress and expense of court proceedings
• You have been separated for five years but know that your partner will challenge the divorce on the basis it would cause them ‘grave financial hardship’ (one of the few reasons someone can contest a divorce based on five years separation). Instead of arguing your case through the courts, it may be easier, cheaper and less stressful to wait for a no-fault divorce

For expert legal advice about divorce, civil partnership dissolution or separation please email law@wilkinsonwoodward.co.uk or contact our family law teams in Halifax, Huddersfield or Brighouse.