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No fault divorce – what is it and when will it be introduced?

Couple’s Hand On Divorce Agreement

The ‘No Fault Divorce’ Bill has passed its final reading in Parliament, and the changes will be implemented in 2021.

The move follows a public consultation where family justice professionals and those with direct experience of divorce voiced their support for reform. The changes will be introduced to Parliament to update the 50-year-old divorce law, which has been shown to exacerbate conflict.

The giant leap forward is a radical change in divorce law.  Having specialised in divorce for the past 25 years, this is the first controversial change I have seen in relation to the dissolution of a marriage.

What does no fault divorce mean?

The change will mean 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
Julie Waring

Divorce solicitor & partner, Julie Waring

This necessity for blame often contributes to conflict and hostility between couples.

Although the new legislation will retain the underlying concept of irretrievable breakdown, it will no longer be necessary to establish one of the facts set out above.

Through the new Bill, a couple may make a joint application for a divorce, which will be accompanied by a statement that the marriage has broken down irretrievably. Either both or one of the parties may make this application.

This alternative option could save couples from unnecessary animosity; and also minimise the emotional impact of divorce on any children the couple may have.

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).

Starting a minimum timeframe at the initial petition stage reflects the view that couples ‘feel divorced’ when the court grants the provisional decree of divorce (the ‘decree nisi’).

It is hoped that this will provide a meaningful period of reflection and the opportunity to turn back. Where divorce is inevitable, it will better enable couples to reach agreement on practical arrangements for the future. Courts will retain the power to expedite the process where appropriate.

It could be argued that the changes might take away the autonomy of a party who feels they have been wronged and may want to issue a fault-based petition. They could have the rug pulled from under them by the other party who can unilaterally issue a “no fault” petition, that party could be in a far stronger position financially and emotionally. It is not a quick procedure so the delay could prove to be emotionally taxing on one or both of the parties.

In my experience, the sad reality is that sometimes couples do grow apart at the fault of either party, so it is a good thing (in some cases) that this is likely to be another option they may have available to them.

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