No-fault divorce – Your questions answered

What is the new no-fault divorce law and when will it be introduced?

The Divorce, Dissolution and Separation Bill gained Royal assent in June 2020, and the government is now working on the implementation of the changes. In a nutshell, this means that the current divorce process in England and Wales will be reformed to remove the concept of fault and the need to blame one of the parties.

While we do not have a firm date for when the new law will come into force, we expect it to be sometime towards the end of this year. We very much welcome this more modern, less contentious approach to divorce proceedings and feel that the changes are long overdue.

What will the main changes be?

The existing divorce system in England and Wales requires one spouse to initiate the process of filing for divorce and,  if within the first two years following separation, make an accusation about the other’s conduct within the marriage.

If a person wants to get a divorce in the two years following their separation they must prove either adultery or unreasonable behaviour.  Fundamentally, this means that the system is fault-based and requires evidence of wrongdoing from one party.

If either or both parties are not able to prove adultery or unreasonable behaviour, they face between two and five years of living apart in a ‘separation’ period before the marriage can be legally dissolved, even if the decision to divorce is mutual. If one party contests the divorce, then they have to be separated for a minimum of five years before they will be considered eligible for divorce.

The new legislation will mean that instead of having to attribute blame for the breakdown of the relationship, a couple can mutually cite ‘irretrievable breakdown’ as the sole grounds for wanting a divorce. Either spouse will be able to provide a statement confirming that the marriage has broken down.

The new law will also:

• remove the possibility of contesting the divorce
• introduce an option for a joint application
• make sure all language is in plain English, for example, ‘decree nisi’ will be changed to conditional order and ‘decree absolute’ to final order

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

Why are these changes being made?

The current law is outdated and reflects neither modern attitudes towards marriage nor the reality of modern-day divorces, many of which are entered into and ended mutually, without any fault attributed to either side.

There is no doubt that the existing divorce laws encourage increased animosity between parting couples. Even when things have been relatively amicable until that point, the process of having to apportion blame can turn things sour quickly.

And it’s not just the separating couple who are affected. Research from Relate shows that conflict between parents is the most damaging thing for children during divorce proceedings, so this new law should help reduce the added emotional burden that they feel.

The new law will also have the added benefit of not allowing domestic abusers to exercise coercive control and trap a spouse in a marriage for five years, by contesting it.

As well as reducing unnecessary conflict and simplifying current practices, the no-fault divorce law will hopefully mean a more civilised, dignified divorce process that is fit for modern relationships. Needing or wanting to blame often creates an unnecessary distraction when the focus should be on reaching a resolution on the important issues, such as their children, property and finances, as quickly and painlessly as possible.

The fact that couples will be able to petition for divorce jointly is a huge step forward.

Won’t taking away the blame encourage more people to divorce?

The fact is that couples are not likely to be thinking of the legal steps when they decide to divorce. All this reform will do is help those who decide that their marriage or civil partnership is beyond hope of reconciliation to deal with the legal and practical consequences without getting caught up in the ‘blame game’.

In other countries where similar reform has taken place, there has been a temporary increase in the number of divorces. For the most part, however, there has been a drop in numbers in the period leading up to the change in the law as couples have preferred to delay their divorce, in order to avoid blame. These spikes have then returned to normal levels soon after the new changes have been introduced so there is no evidence to suggest it will lead to more people getting divorced in the long term.

Will this new law make it possible for couples to have a ‘quickie divorce’?

No, the process involves a period of six months before you can obtain a final divorce order so it is unlikely to make the process quicker, just hopefully less confrontational and painful.  There will also be a ‘cooling off’ period introduced of three months, so that parties have a reasonable period of time to see if they can reconcile before being able to issue divorce proceedings.

“Should I wait until the law changes to issue divorce proceedings?”

There are lots of reasons why it makes good financial sense to start divorce proceedings soon after your separation.  One of the main reasons is so that your spouse can no longer make a claim against your estate in the event of your death.  There are also potential tax implications and consequences in respect of pensions and the family home.

It is strongly advisable that you always speak to a family law solicitor when you first separate.  A lawyer can then advise you about whether it is in your best interests to wait or whether you should issue divorce proceedings more quickly.

Get in touch

Leah Thomas is a senior associate solicitor in our Family & Matrimonial department at Harding Evans and knows how stressful and emotionally draining divorce can be. Our expert and friendly team can advise you on all aspects of getting divorced and will help to minimise the stress and upset that inevitably comes with ending a marriage. For a confidential discussion about your situation, please contact the Family Law team on 01633 244233 or email hello@hevans.com.