No fault divorce: end of the ‘blame game’?

Next week, Wednesday, 6 April, the biggest divorce law change since 1973 will come into effect in England and Wales with the introduction of ‘no fault’ divorce through the Divorce, Dissolution and Separation Act 2020 (the Act). Couples will then be able to get divorced without having to provide evidence blaming the other (or, alternatively, having to wait two to five years).

Prior to then (and for many decades), the only ground for divorce was the irretrievable breakdown of the marriage. Proof that the marriage had broken down needed to be based on one of the following facts: adultery, unreasonable behaviour, desertion, two years separation (with consent of the other party) or five years separation (without consent).

In the vast majority of cases (unless a couple were prepared to wait), a petition would need to be based on unreasonable behaviour, i.e. the fault of one party. The reality is that the breakdown of a marriage is rarely one person’s fault and this process often led to exacerbating an already tense situation, raising the temperature (and, of course, the parties’ costs) and quite often made it more difficult to negotiate resolution of the financial issues arising from the divorce. and to deal with contact arrangements for any children of the marriage.

Under the new law, it’s still necessary to confirm that the marriage has broken down irretrievably, but no additional reason need be provided and the issues above have been stripped away. What is more, for the first time, there will be an option for the application to be made jointly, meaning the burden of starting the divorce does not fall solely upon one person’s shoulders, allowing the couple to begin the process in a more collaborative way.

Another fundamental change is that there is no longer any means of defending a divorce (albeit that this happened very rarely in practice). However, the divorce application can be still be challenged, but only on the basis either that the marriage wasn’t valid or that the court does not have jurisdiction; in other words, one can no longer argue that the marriage has not irretrievably broken down.

There are two further points to bear in mind:

1. The terminology has changed: out with Decree Nisi and Decree Absolute and in with Conditional Order and Final Order.
2. The new law provides for minimum time between starting the divorce and the court making the Conditional Order, being 20 weeks. One then still has to wait further six weeks and one day to apply for the Final Order. The rationale behind this enforced waiting period is to provide the couple with time for reflection as well as a greater opportunity to agree any practical arrangements before the divorce is finalised.

These changes to our current outdated system are welcomed by many and seen as long overdue. Furthermore, in practice , there is rarely a dispute that the marriage should come to an end and what the Act provides is a more efficient, economical and collaborative means of effecting a divorce.  Instead of undermining the institution of marriage, many view these changes as both providing the opportunity for couples to end their marriage with greater dignity and being more representative of society than the previous law.

If you require any advice in this regard, please do not hesitate to contact Tom Quinn, head of the London Family Team, on 0203 941 2072.