No-Fault Divorce: everything you need to know
February 11, 2022
Emma Smart and Linda Lusingu consider the advantages and disadvantages of the forthcoming changes to the divorce process.
The so-called ‘No-Fault Divorce’ will come into effect in April 2022 in England and Wales. Currently, parties must prove that their marriage has irretrievably broken down. The petitioner must cite one of the current five reasons for divorce (behaviour, adultery, 5 years separation, 2 years separation with consent, or desertion). This change in the law means that couples can now get divorced without needing blame on the other person for causing the breakdown of the relationship.
It is worth noting that this change will also apply to those seeking to dissolve a civil partnership.
Advantages of the new divorce process
No longer a blame game with the no-fault divorce
A no-fault divorce removes the need for fault or blame in the divorce process. This is done by scrapping the requirement to cite one of the current five reasons for divorce. If a divorce is amicable and uncontested, this is a real benefit as it allows for a smooth divorce process without the finger-pointing that the current process can often encourage. This can also have a beneficial impact on the process of dealing with financial or child arrangements, which will still need to be dealt with in most cases.
Cannot defend the divorce
The new system also removes the confusion that many respondents currently have around accepting the divorce but wanting to contest the reasons given. In fact, after April 2022, the respondent will no longer be able to defend the divorce (unless on the grounds of the validity of the marriage). With the removal of the need for blame and the option of defending, it can make it easier for the respondent to accept the divorce and to cooperate fully, making the process as harmonious as possible.
Introduction of joint petitions with the no-fault divorce
The new system allows a couple to apply jointly for a divorce, rather than forcing one person to file for a divorce (currently the petitioner) and the other person to act as a respondent. This can remove the impression of opposing sides and allow for a more amicable split for couples who find themselves on the same page.
Under the new system, there is to be a simplification of the legal terminology. The decree nisi is to be called a conditional order of divorce, and the decree absolute is to be called a final order of divorce. The petitioner, i.e., the person submitting the application, will instead now become the applicant. This is hoped to improve clarity in the process and therefore make it more accessible to parties involved.
Disadvantages of the new no-fault divorce process
Undermines the sanctity of marriage
Some critics have argued that the new system makes it too easy to get a divorce and that this undermines the sanctity of marriage. To counteract some of these concerns, a 20-week minimum period between the initial application and the finalised divorce will be introduced. Though this may seem like a disadvantage to those who are seeking to resolve divorce proceedings as soon as possible, it can allow for couples to focus on other important matters before the divorce is finalised. These include finances and childcare arrangements, both of which Blackfords LLP has extensive experience in dealing with.
Whether you are seeking to divorce under the old system before the April deadline or under the new system, our team of experienced lawyers is on hand to guide you through the process and help you obtain the best outcome for you and your family.
Emma Smart is a Paralegal in our Family Team. Linda Lusingu is a Solicitor in our Family Team