No-fault divorce - leaving the blame game behind

The Government has confirmed that the long-awaited Divorce, Dissolution and Separation Bill 2020, which introduces 'no-fault' divorces in England and Wales, will be delayed and won't be implemented this autumn. The Government is now working on a new commencement date of 6th April 2022.

As the title suggests, in a no-fault divorce, neither party will have to assign blame to their former partner for their divorce to be legally finalised; a hugely significant change to divorce legislation which could see a reduction in conflict and acrimony in many cases going forward.

Current Divorce Law

Under the current law in England and Wales, there is only one ground for divorce; the irretrievable breakdown of the marriage. In order to petition for divorce, the petitioner must rely on one of the following five facts:

1. Adultery;
2. Unreasonable behaviour;
3. Desertion;
4. Two years' separation with consent;
5. Five years separation (no consent required).

Facts 1-3 are fault-based and 4-5 non-fault-based. The only way to obtain a divorce without attributing blame is to wait two years (however, your spouse's consent is still required) or five. As most couples do not wish to wait, this means that at present, there is practically no way to divorce without assigning blame to one spouse.

As a result, most divorce petitions rely on adultery or unreasonable behaviour. Even though there are ways to avoid raising the tension, this can cause unnecessary conflict and result in one party defending the divorce petition. Whilst defendant petitions are very rare, the current system does allow spouses to apply to defend or cross-petition.

The New No-Fault Divorce Law: What are the changes?

The new law – once it is implemented – will retain the irretrievable breakdown of a marriage as the sole ground for divorce. But it will replace the requirement to specify one of the five grounds for divorce with a 'statement of irretrievable breakdown' – thereby eliminating the requirement to administer any blame.

However, the definition of an irretrievable breakdown has expanded through two fundamental changes. The first change is that divorce proceedings no longer have to be initiated by one partner alone, and instead, a couple can make a joint application.

The second change is that a single mechanism has replaced the current list of five permissible ways to prove the breakdown. At least one spouse has to provide a legal statement to say the marriage has broken down irretrievably, and this statement counts as conclusive evidence and cannot be contested.

Parliamentarians also took the opportunity to modernise and simplify some key legal terms in the divorce process:

- The petitioner will now be the applicant;

- The decree nisi will now be called a conditional order;

- And finally, the decree absolute will be called a final order.

This is the latest step in a 20-year program of changes to make the language of civil courts more accessible.

Commenting on the forthcoming adoption of no-fault divorce in England and Wales, Ashley Le-Core said:

“This is a change that we in the profession have been waiting for, for a very long time. Parties who simply ‘fall out of love’ have either had to wait at least 2 years to start their divorce, or apportion blame where there simply isn’t any, potentially making a very straightforward process, unnecessarily complicated. This is a welcome change and is a much more amicable approach that has been required for a significant period. I welcome this with open arms”.

Common questions about the no-fault divorce

Can you get a no-fault divorce online?

Yes, you can get a no-fault divorce online at the present time, as there is the option to divorce after two years if you both consent. This does, however, require the consent of both parties, whereas, with an actual no-fault divorce, no one can object to the divorce.

Is it worth waiting for the law to change before filing for divorce?

With the actual processes unlikely to be in place by April 2022 at a minimum, it may be too long for some people to wait to file for their divorce, especially if they have been separated for some time.

What are the benefits of a no-blame divorce?

The main benefit is that the parties do not need to make any allegations about the other person. This will reduce anger and allow the parties to constructively separate and deal with their finances and children.

No-fault divorces are quicker, easier, and less expensive than at-fault ones.

It is also generally accepted that no-fault divorce better reflects modern relationships. Often none of the five 'facts' currently available fit with the real reason for divorce.

If you need any advice on any divorce-related matter or have any other family law-related queries, don't hesitate to get in touch with us, and we will be happy to discuss your circumstances in more detail. For further information, please contact our New Enquiries Team on 01474 546013 or via email at enquiries@martintolhurst.co.uk.