No Fault Divorce – ‘To Blame or not to Blame’
Fact Checked
After centuries of stagnation, it was announced on 25 June 2020 that the law in relation to Divorce was being modernised. This modernisation was after years of deliberation where all divorces had to be one party’s fault (unless you rely on separation) and this subsequently gave rise to the ‘blame game’. Whilst going through a divorce was stressful enough, the ‘blame game’ only made couples more hostile towards one another and subsequently meant that, in many circumstances, the relationship had already broken down, making it difficult to agree on arrangements for the children or the finances of the marriage.
Fortunately, the passing of the Divorce, Dissolution and Separation Act 2020 in June 2022 is going to change the law dramatically. This Act is due to come into effect on 6 April 2022 and this article will look at what it will mean for couples who divorce after these changes come into effect.
Current Divorce Law:
The current law does not allow for married couples to start divorce proceedings without apportioning blame to the opposing spouse. The only way that one could obtain a divorce without apportioning blame is to wait for two long years and for the opposing spouse to consent to the divorce. This meant that if a married couple sought to divorce on amicable and ‘blame free’ terms they would have to be in an unhappy marriage for two years and hope that the opposing spouse would agree. This effectively feels like a ‘lose/lose situation’ as there is no guarantee you will obtain consent from the opposing spouse.
The alternative to this route would be that the parties separate for five years which would abolish the need for consent. However, for a couple to remain married but separated for five years’ is not ideal for the couple and for any children involved.
For an immediate divorce, parties would have to rely on the ‘blame game’ to provide that their marriage has irretrievably broken down. This would mean that you would have to prove that one spouse has committed adultery or behaved in such a way that the other cannot reasonably be expected to live with them.
As one can imagine, the opposing spouse would have to agree that they either committed adultery or behaved unreasonably. Thus, in most scenarios, the parties are forced to air their ‘dirty laundry’ and in most cases, this adds fuel to the already burning fire. The current system also makes it easy for opposing spouses to easily defend the divorce or cross-petition which leads to Court hearings, meaning there is often significant delays and excessive costs.
So, how will the new law change the outdated current system?
No Fault Divorce:
The new law will mean that instead of attributing blame to one party, a married couple can mutually (or individually) state that the marriage has irretrievably broken down as the sole ground for obtaining a divorce. This major change would mean that the spouse applying for the divorce will simply need to state that the marriage has broken down without having to give evidence or examples of ‘unreasonable behaviour’ or ‘adultery’ if there is no requisite period of separation. Therefore, the old fashioned ‘facts’ system which required ‘blame’ or ‘separation’ has been abolished.
The new procedure has simplified the online process and has changed the old-fashioned language to meet with the current times. The term ‘Decree Nisi’ will now become ‘Conditional Order’ and ‘Decree Absolute’ will become the ‘Final Order’. The ‘divorce petition’ will now be referred to as the ‘divorce application’.
Another major change is that once the divorce application has been filed with the court, the parties will have to wait for a minimum period of 20 weeks (5 months) prior to applying for the Conditional Order. This ‘waiting period’ seems excessive however the purpose is to allow the parties going through the divorce the opportunity to reflect. If the situation remains unchanged, the spouse applying for the divorce (or both jointly) will need to confirm they have reflected and seek to progress with the divorce. Only then will the Court confirm the Conditional Order.
Once the Conditional Order has been made, the parties will have to wait a further 6 weeks before the application for the Final Order can be made. However, in most circumstances, parties will seek to resolve the financial aspects of their separation prior to applying for the Final Order.
In theory, the whole process could take approximately 26 weeks.
By way of conclusion then the new law will mean that parties can divorce in a much less acrimonious fashion, thereby allowing them to concentrate on resolving other aspects of their divorce, such as the child arrangements and financial settlement, without the need to blame each other.
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Managing Associate and Head of Family
Claire advises on all aspects of relationship breakdown, providing expert advice on divorce, separation, protecting the family finances and children of the family.
Claire’s expertise includes divorce cases involving high value and complex structures, often with international assets and jurisdiction issues. She also often represents clients in complex children’s proceedings where there has been local authority involvement and in applications to remove/contest removal of children from the jurisdiction.
Claire can advise both where there are high value assets or complex issues to resolve as well as helping professional families and those that are not working. She can resolve cases amicably as well as robustly and will tailor her approach to suit your individual circumstances.
Claire is dedicated to resolving matters as quickly and cost-effectively as possible. She supports her client’s to make the process as stress-free as possible and is dedicated to providing the very best standards of client care. She will help guide you through all aspects of family breakdown, providing a personable approach. She often works closely with other professionals such as counsellors, coaches, mediators, financial advisors and forensic accountants to ensure her clients are fully supported throughout the process.
