The new 'no-fault divorce' law: what is it and what has changed?

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The Divorce, Dissolution and Separation Act 2020 will come into force on 6 April 2022.

The new legislation is the biggest change to divorce law in England and Wales for decades and introduces the long-awaited concept of “no-fault” divorce to this country. The Act aims to end the “blame game” and reduce animosity between separating couples and mitigate the impact on their children. The “no-fault” divorce changes detailed in the new legislation mean that the grounds for divorce are now entirely non-fault based.

In order to obtain a divorce, the Court needs to be satisfied that the marriage has broken down irretrievably. At present, unless a married couple have been separated for a period of at least two years, the spouse instigating the divorce has to base it on the other’s adultery or their behaviour. Unlike other jurisdictions, there is no option for the parties to cite “irreconcilable differences”. Understandably, the requirement to attribute blame and fault for the breakdown of the marriage can cause upset and hostility. Often, the party on the receiving end of allegations will say that they are exaggerated, misunderstood or even untrue. It can be distressing and inflammatory in circumstances where the separating family should turn their attention to their changing future, rather than focusing on historical events. The new divorce petition itself will not be disclosed to the Court when it comes to dividing the family finances or dealing with where the children live, so the reasons cited within the divorce petition are rarely relevant when dealing with wider matrimonial issues.

It has been widely accepted by family law practitioners that divorce law in England and Wales is outdated. There has been extensive lobbying of Parliament to reform the law. The current legal requirement which assigns blame often makes it harder for couples to reach an amicable agreement during an already turbulent time. It is hoped that this new legislation will prevent needless antagonism.

Some of the key reforms are as follows:

  1. Separating couples can now make a joint application for divorce. This means that there is no longer a requirement for only one party to issue proceedings. Allowing parties to petition together will hopefully make separating couples more amicable, as issuing a joint petition will boost collaboration during the production of Court documents.
  2. The language of divorce is to be updated. The party applying for the divorce will now be called the “applicant”, instead of the petitioner. The decree nisi, which is the middle stage of the divorce, will now be called the “conditional order”, whilst the decree absolute, which concludes proceedings, will now be called the “final order”.
  3. There is now a 20 week “cooling off period”. The new legislation directs that there must be at least 20 weeks between the initial application for divorce and the conditional order. There must then be at least another 6 weeks between the conditional order and final order. As a result, divorce proceedings will take at least six months to complete. It is hoped that this longer period will allow both parties to reflect upon their decision to divorce and provide an opportunity for reconciliation if necessary.
  4. Divorce can now be granted without blame. There is now a single mechanism to prove the breakdown of a marriage, i.e. that one spouse must provide a legal statement stating that the marriage has broken down irretrievably. This will count as conclusive evidence of the breakdown of the marriage and cannot be contested. There is no need to set out the reasons why one or both parties believe that the marriage has broken down. It will still be possible for parties to raise the other’s behaviour (as is relevant) when determining financial or child arrangements.
  5. Divorce proceedings can no longer be contested. Under present legislation, the respondent can defend a divorce and deny that they have behaved as alleged. A respondent can even issue their own cross-petition. This can prolong the divorce process, increase stress and create additional legal cost. Under the no-fault divorce law, the ability of a party to contest the divorce is removed.
  6. Domestic abuse victims are no longer trapped by a spouse contesting the proceedings. In the past, certain abusive partners were able to trap their spouse by contesting divorce proceedings which merely exercised further coercive control over their victim. The lack of contested proceedings will allow the victims of domestic abuse greater freedom to escape the perpetrator.

One important aspect of the new legislation is that the no-fault divorce process will be entirely digital and take place via the Court’s online portal. This entirely removes the need for paper applications; it is hoped that this will streamline the process considerably. The Court fee, however, will remain at £593.00.

Whilst fears have been raised that the simplification of the divorce process may lead to a spike in new divorces, the new legislation aims to ease conflict all round. It aims to allow divorcing spouses to deal with other contentious issues more amicably, such as arrangements for the children and the parties’ matrimonial finances. It is important to note that the no-fault divorce process will not automatically end a couple’s financial commitments to each other. It remains crucial that the matrimonial finances are dealt with concurrently to the divorce so that financial claims are also concluded, and divorced spouses achieve financial certainty. This is achieved by way of a financial consent order or a separate court order.

Financial issues and the arrangements for children are usually the most difficult and contested elements for both clients and practitioners in a divorce. By removing an unnecessary element of hostility within the divorce process itself, the new reforms should permit all involved to focus on the more challenging areas without adding unnecessary fuel to the fire.

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