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No fault divorce and what it means

Divorce rings

A NEW divorce law, ‘no fault-divorce’ has come in to force today (April 6 2022).

The introduction means couples no longer need to rely on adultery, unreasonable behaviour, desertion or two or five years separation or prove their partner is at fault before they can legally separate.

According to leading divorce lawyer Julie Waring, the change will help to improve the mental health of estranged partners. It also assists estranged partners who are amicable and not wanting to use blame as a reasoning.

Under the previous rules, one spouse can contest a divorce and force the process to take many years. The introduction of so-called ‘no-fault’ divorces means couples must no longer have to rely on the five previous facts above.

This is welcomed by campaigners, who say the Divorce, Dissolution and Separation Act will alleviate the pressure on divorcing spouses and their families who may otherwise be trapped in long divorce battles. The Act will also introduce more plain English terms such as ‘conditional order’ instead of ‘decree nisi’ and ‘final order’ instead of ‘decree absolute’ to help demystify proceedings.

However, it has also drawn criticism from those who say it may actually slow down the process for other applicants.

Julie Waring, a family law partner at Morecrofts Solicitors, says: “Marriages break down for all sorts of reasons but it’s important to remember that at the heart of any marriage is two human beings and there is a lot of emotional pain involved when things go wrong”.

“In situations where one spouse has the power to deliberately block a divorce, it can cause serious, lasting harm to the mental wellbeing not only of those directly involved, but also their children, family and friends.

The new legislation intends to reduce the circumstances in which this might happen and allow people to leave unhappy marriages without undue heartache. In this sense, the new rules should be welcomed wholeheartedly as a clear step in the right direction.

However, the legislation is also flawed and may actually increase the waiting time for some applicants. From April, a person seeking a divorce will be unable to get their conditional order which will take a minimum of for 20 weeks and must wait a further six weeks to apply for the final order, meaning the process will take an estimated six  – eight months if all runs smoothly.

This mechanism could ultimately be used maliciously by one party to persecute their former spouse or force them into a divorce agreement which is to their financial detriment, so the family courts must also be vigilant to anyone gaming the new system for their own ends and close any loopholes in the new system.”

What does no fault divorce mean?

The change means that there will be an additional way to divorce, removing blame.

The current position is that in order to satisfy the court that the marriage has broken down, one person in the marriage must state one of the following facts;

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Two years separation (if the other party agrees to a divorce) or five years separation

Proposals for changes to the law include:

  • Retaining the irretrievable breakdown of a marriage as the sole ground for divorce
  • Replacing the requirement to provide evidence of a ‘fact’ around behaviour or separation with a requirement to provide a statement of irretrievable breakdown
  • Retaining the two-stage legal process currently referred to as decree nisi and decree absolute
  • Creating the option of a joint application for divorce, alongside retaining the option for one party to initiate the process
  • Removing the ability to contest a divorce
  • Introducing a minimum timeframe of 6 months, from petition stage to final divorce (20 weeks from petition stage to decree nisi; 6 weeks from decree nisi to decree absolute).