Divorce in 2022 – what is a no fault divorce?

If you are contemplating divorce, we know that you will have multiple questions about the steps involved, the grounds for divorce and the wider considerations for your finances, your home and your children.  In April, there will be revolutionary changes to divorce law introduced, with the main purpose to remove the implication that one party is at fault in a marriage or civil partnership.  Jason Evans, Partner and Collaborative Lawyer in our Family Law team, explains more about these changes and how we can support you during these times.

What have been the grounds for divorce?

For many years, there have been five grounds for divorce, as follows:

1. Adultery, and you have been married for one year
2. Unreasonable behaviour, and you have been married for one year
3. Desertion for two years
4. Separation for two years and both parties consent to the divorce
5. Separation for five years, in which the consent of the other party is not required

The Divorce, Dissolution and Separation Bill received Royal Assent in 2020 with the key focus being to remove the element of blame from divorce proceedings.  Deciding to divorce will naturally be an emotional one for both people involved, but with the current grounds it’s clear that for a divorce to occur earlier than two years after separation, one party must be guilty of some wrongdoing.  This will inevitably make it harder for other decisions to be made harmoniously, such as arrangements for children, property or the finances of the couple.  While the option of waiting for two years is currently available, this can delay a couple feeling like they can move on with their lives and making a fresh start.

What changes will the no fault divorce bring?

There are various amendments that the Bill will introduce with implications for couple looking to divorce:

1. The main change will be that while “irretrievable breakdown” will remain as a basis for divorce, there will no longer be a need to provide evidence of this, such as adultery or unreasonable behaviour.
2. An application to this effect can be made either individually, as before, or jointly, which is a new measure introduced to reach a balance between the two parties. With the new legislation, if an application is made individually, there is no opportunity for the other party to contest it, unless there are concerns of fraud or coercion.
3. The terminology involved in a divorce will change:
   1. The decree nisi will be referred to as a conditional order
   2. The decree absolute will be referred to as a final order
   3. Petitioners will be known as applicants
4. There will be a new time period introduced of six months between filing for divorce and the issue of the conditional order (previously decree nisi) to allow the couple the opportunity to reflect on their choice and reach key decisions about their future. This has been implemented to counteract the concerns that the Bill could make divorce a quick and easy option.
5. There will be more reliance on an online filing and notification system, for example, if you are filing the application individually, you have 28 days to notify your spouse by email with a supporting confirmation sent in the post.

There will still remain a six-week time period between the conditional order (previously decree nisi) and the final order (previously decree absolute) being granted.

How will no fault divorce impact my financial decisions?

It is important to note that under the new rules, making arrangements for your finances will still be dealt with separately to your divorce and will not change how a Court views division of your assets.

Depending on your circumstances, you may be required to disclose your financial obligations and position, after which a full assessment can be arranged in order for you to understand your rights and entitlements before reaching decisions.

We would always recommend you seek legal advice regarding your financial arrangements, particularly in relation to pension provisions, as these are often overlooked but could make a significant difference in your long term financial stability.  We can also advise at this stage how you obtain your consent order to ensure any agreement reached regarding your finances becomes legally binding.

The introduction of the no fault divorce recognises that marriages do not solely fail due to the actions of one person, but can simply be a case of two people drifting apart or becoming unhappy.  By removing the apportionment of blame it allows couples to focus on other matters involved, such as their property and children, without the stress and conflict that has historically arisen, providing a more harmonious future for the family unit as a whole. 

Our Family Law team are available to answer your questions and provide you with guidance as to the best course of action if you are facing divorce or separation.  We offer a free initial appointment to allow you the opportunity to understand the steps involved and the benefits of using an experienced legal team.  To discuss making an appointment, you can contact Jason or the Family Law team on 01794 328688.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.