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No Fault Divorce

What is a 'no fault' divorce - and should you wait?

Jun 8th, 2021

Emma Lawler, Partner

The new “no fault” divorce/dissolution of civil partnerships will come into force on 6th April 2022, allowing couples to divorce without allocating blame.

Family lawyers and others have been campaigning for a change in the law for many years. Divorce laws have not been updated since the 70’s and are regarded by many as archaic. The process of divorce involves a copy of your divorce petition being presented to a Judge halfway through the proceedings at “Decree Nisi” stage. At this point, a Judge will review the divorce petition and confirm whether or not you are entitled to a divorce. You therefore have to ensure that your petition is drafted accurately and that if you are relying on “unreasonable behaviour,” you have provided sufficient examples of behaviour to satisfy the court.

In order to prove to the court your marriage has irretrievably broken down, you have to rely on one of five facts;

  1. Adultery
  2. Unreasonable behaviour
  3. 2 year’s separation  (if your spouse agrees to use this fact)
  4. 5 year’s separation (you don’t need your spouse to agree to use this fact)
  5. Dessertion

Therefore, for couples who wish to remain on amicable terms, the fact they need to blame the other spouse for the marriage breakdown (unless they wait for 2 years) doesn’t feel comfortable and is something they would wish to avoid.

Some wish to attribute blame. There is a common misconception that “fault” will impact on the financial settlement. It is in fact rare for the court to take into account a spouse’s behaviour when determining how your assets should be divided. Sometimes, focusing on blame can create additional conflict which could have been avoided.

The new “no fault” divorce will not provide you with a quicker divorce. The process will take the same time as the current system. You will however be able to agree between you that there should be a divorce without having to blame the other. The terminology will also change. “Decree Nisi” will become “Conditional Order” and “Decree Absolute” will become a “Final Order.” The changes to the law will also remove the possibility of one party contesting a divorce.

The main benefit of waiting for the change in the law is simply the ability to submit a joint application to court for divorce without blaming your spouse. The process will not be cheaper or quicker. It is of course likely that if you wish to remain on amicable terms, you are more likely to be able to agree the arrangements for your children and or/ the split of financial assets. Having said that, many couples are still able to agree amicable arrangements within the remit of the current divorce laws. A good family lawyer will be able to advise on the content of an unreasonable behaviour divorce petition in order to keep the allegations mild and to a minimum whilst also providing enough information to satisfy a judge that you are entitled to a divorce.

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Emma Lawler

Partner

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