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No-Fault Divorce

Posted on March 10th 2022

The Law is changing on 6th April 2022.  Our current “Fault-based” divorce system will be replaced by a “No-Fault-based” divorce system.

What is No-Fault Divorce?

There is only one ground for divorce, which is that a marriage has “irretrievably broken down”.

Under our current Law, you have to show a court that your marriage has “irretrievably broken down”, by proving one of the following five “facts”:

  1. That your spouse has committed adultery and you can no longer stand to live with them.
  2. That your spouse has behaved in such a way that you can no longer be expected to live with them.
  3. That your spouse has deserted you.
  4. That you and your spouse have been separated for at least two years (and that your spouse consents to a divorce going ahead on that basis).
  5. That you and your spouse have been separated for at least five years (they do not need to consent).

As you can see, the first three “facts” above all imply that the spouse who has committed adultery, behaved unreasonably, or deserted you, has been “at fault”.  Of course, a marriage breakdown is never that simple.  The fourth and fifth “facts” do not suggest “fault”, but require spouses to wait a long time before they could be used.

No-Fault Divorce removes the need to either prove that your spouse is “at fault”, or to be separated for a number of years, in order to obtain a divorce.

How much will No-Fault Divorce Cost?

At Oliver and Co Solicitors, our Family team can take you through the new divorce process for a fixed fee of £650+ VAT.  There is also a court fee payable, which is currently £593.  The total fee will therefore be £1,373.

The New Law

The Divorce, Dissolution and Separation Act 2020 is the Act of Parliament that is introducing No-Fault Divorce.

From 6th April 2022, the sole ground for divorce will remain that the marriage has “irretrievably broken down”, but there will no longer be a requirement to show one of the five “facts” above to prove this.

The new Act also changes the divorce terminology, to make it more user-friendly.  At the moment, the Latin terms, Decree Nisi and Decree Absolute are used to describe divorce documents, but these will now be called a Conditional Order and Final Order.  Those petitioning for a divorce will no longer be the “Petitioner”, but the “Applicant”.

The new Act also makes it possible to make a joint application for divorce with your spouse, where you both agree that the marriage has irretrievably broken down.

Why has there been a change in the Law?

Many people cannot afford to wait to be separated for at least two years before applying for a divorce and therefore have to use one of the “fault-based” reasons to show that their marriage has “irretrievably broken down”.  This can create acrimony amongst two spouses, with one of them essentially “blaming” the other for the marriage breakdown and dredging up past hurts that could be avoided if “fault” did not have to be shown.

A consultation was launched in September 2018 and Ex-Justice Secretary, David Gauke commented that Divorce Law was “out of touch with modern life”.  In 2019, the Government published a response to the consultation and stated that they planned to implement No-Fault Divorce.

How do I apply for No-Fault Divorce?

You can apply either independently, or with your spouse jointly.

Once you have made an application, a 20 week “period of reflection” begins, to ensure that the Applicant(s) are certain that they want to take this action.  After these 20 weeks, the Applicant(s) can state that they want to proceed with the divorce and the court will make a Conditional Order (previously Decree Nisi).  Thereafter, you will have to wait a further 6 weeks before the court can make a Final Order (previously Decree Absolute).  A divorce under the new Law will then take a minimum of 26 weeks from start to finish.

It is also advisable to seek advice from a solicitor regarding Financial Settlements (and Child Arrangements) on a divorce, as these matters will not be dealt with as part of a divorce itself.

What happens if my partner doesn’t want a Divorce?

Under the current system, it is possible for a Respondent to divorce (the spouse being divorced) to defend it.  However, No-Fault Divorce removes this option, as long as the divorce has been properly applied for.

Should I wait for No-Fault Divorce?

This will depend on your individual situation and is not the same for everyone.

If you and your spouse agree that you want a divorce, but are not in any rush to action this, you might decide to wait until the Law has changed.  However, if you would like a divorce to be completed as soon as possible, you might decide to begin your divorce before 6th April 2022.

Some people may choose to wait for No-Fault Divorce to be implemented before applying for divorce, if they are concerned that their spouse will try to challenge a Petition, or if they will not agree to a divorce after being separated for at least two years.  From 6th April 2022, spouses who have been separated for at least two years, whose spouse will not agree to a divorce will no longer have to wait until five years have passed before they could obtain a “no-fault” divorce, as is the current position.

Please note that, if you intend to wait until 6th April 2022 onwards before applying for a divorce, there may be an initial high number of applications being made, resulting in potential delays in the court considering your divorce.

Does a No-Fault Divorce affect the outcome of my Finances on Divorce or Child Arrangements?

As the current Law stands, divorce rarely impacts on Finances on Divorce or Child Arrangements, connected to that divorce, but it can cause animosity between the parties.  Removing “blame” from the divorce process is likely to reduce the issues between the parties and assist in the resolution of matters overall and this is certainly the hope and intention of the new Law.

If you would like to discuss your options surrounding divorce, please do not hesitate to contact us on 01244 312306 or law@oliverandco.co.uk.  Our Family team offer a Free 10 Minutes of Legal Advice to all new enquiries, with no obligation to instruct us thereafter.

Call and speak to a member of our team on 01244 312306