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How and when can I get a no-fault Divorce?

As from Autumn of 2021, the new law on no-fault divorces in England, which was originally announced in February 2019, will be reformed. This is the first major change since 1973

The laws relating to divorces in England & Wales are changing soon. These changes have been long talked about and promised by successive Governments and finally they are coming into force. The plan is to simplify the process as well as removing some of the technical language that surrounds divorce law.

As from Autumn of 2021, the new law on no-fault divorces in England, which was originally announced in February 2019, will be reformed. This is the first major change since 1973.

Under the new law, separating couples will no longer have to choose one of the ‘five facts’ to prove the ground for divorce. At present every petitioner in a divorce needs to confirm that the marriage has irretrievably broken down and in addition they need to choose one of the 5 facts available.

The new law will encourage a more constructive approach to separation, promoting reconciliation and reflection wherever possible but ultimately trusting the judgment of the couple involved.

Why does divorce law need reform?

Under the current law, couples wanting to separate in the UK must rely on one or more ‘facts’ to prove that their relationship has irretrievably broken down. These facts are:

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

This means that the divorce petition must be brought by one party (the Petitioner) who must effectively ‘blame’ the other party for the divorce. This causes unnecessary confrontation and sometimes distress. It also means that if the Respondent disagrees with the ‘fact’ pleaded in the divorce, they can contest the divorce and potentially even prevent it.

This naturally can stir up even more conflict between the divorcing couple. It also means that all too often the Respondent will reluctantly agree to a divorce even though they do not really admit the ‘fact’ cited.

In extreme situations there have been cases of some people effectively being forced to remain in abusive relationships. One such situation was the 2018 case of Tina Owens. Mrs Owens lost her Supreme Court battle to divorce her husband, forcing her to remain married against her will until 2020 when the 5 years separation fact came into play and allowed her to get a divorce without her husband’s consent.

How will the New ‘no-fault’ divorce process work?

The Divorce, Dissolution and Separation Bill which introduces no-fault divorce aims to bring about the following changes to the current law:

  • Keep the sole ground of irretrievable breakdown of the relationship
  • Do away with the requirement to establish one or more facts to prove irretrievable breakdown
  • Simplify the divorce language & terminology used by courts and lawyer, so for example:
    • ‘Decree Nisi’ will become a ‘Conditional Order’
    • ‘Decree Absolute’ will become a ‘Final Order’
    • ‘Petitioner’ (the person submitting the application) will become the ‘applicant’
  • Introduce the option for joint applications where the couple both agrees that the relationship has irretrievably broken down
  • Take away the right to contest a divorce, dissolution or separation
  • Introduce a new minimum period of 20 weeks from the start of proceedings to when the ‘Conditional Order’ can be made
  • Keep the 6 week period between the Conditional Order and when the Final Order can be made

What no-fault divorce will mean for you?

  • No more need to blame the Respondent
  • If both parties agree, they will be able to make a joint application for divorce or dissolution, allowing them to have a completely amicable separation
  • No more worry about whether your partner will contest the divorce or dissolution and forcing you to go to court, thereby saving you considerable time, cost and anxiety
  • With the new time scales there will still be a wait of about 6 months you’re your divorce or dissolution to finalise. However; this time is intended to be used as period of reflection for both parties to consider whether they truly want to separate
  • During this time, divorcing couples will still need to make separate arrangements to:
    • Divide their finances
    • Agree to any maintenance payments
    • Sort out any disputes relating to child residence and contact
    • Agree an ongoing parenting plan, if they have dependant children

Should you wait for no-fault divorce to become law before starting your divorce?

In most cases, if you are ready for a divorce now, it would not be advisable to wait unless you have very special reason to do so. The reality remains that the vast majority of divorces are reasonably amicable and can still go ahead even under the existing law. Additionally if you have reached the conclusion that your marriage has irretrievably broken down, there seems little point in waiting to use the new procedure, unless, as we said above, there are special reasons that apply to you.

The reality of the ‘blame’ divorce that exists at present is that it is mostly symbolic and will almost never affect the outcome of the divorce, including the financial settlement and arrangements for the children.

The following are examples of some situations where it might be worth considering waiting for the new no-fault divorce:

  • You have an ‘acceptable reason’ to divorce (such as adultery) but your partner says that they will challenge your application and try to drag the matter through court. The new system of ‘no-fault’ divorces will prevent them from doing this and in that way save time and money
  • Your partner does not want a divorce or dissolution and you do not have any ‘acceptable’ reasons to do so (such as adultery or unreasonable behaviour). Under the existing law, you would have to wait 5 years to get a divorce without your partner’s consent, so waiting for no-fault divorce might actually help you get a divorce quicker
  • You have been separated for 5 years but you fear your partner will challenge the divorce on the basis that it will cause them ‘grave financial hardship’. This is one of the most common defences to the 5 year divorce route. Rather than facing that argument in court now, you may find it easier, cheaper and less stressful to wait another year for no-fault divorce to come into practice

For the vast majority of people reading this article and considering a divorce, the new no-fault system will not make a huge difference to their chances of obtaining a divorce. This is because the vast majority of divorces proceed undefended anyway. However; if you have a particularly complicated situation, we advise booking a consultation with us to discuss that. We will be able to offer you tailored advice that best meets the demands of situation you find yourself in.

Contact us to book a consultation.

For advice about no-fault divorce or any other divorce, civil partnership dissolution or separation matter, get in touch with us.