No Fault Divorce Laws Are Here

The Government’s long-awaited Divorce, Dissolution and Separation Act 2020, which introduces no fault divorces in England and Wales, is here and has now come into force.

Hailed as the biggest shake-up in divorce law for 50 years, the Act seeks to end the “blame game” and reduce the impact that allegations of blame can have on separating couples and, in particular, children.

What was the previous divorce system?

The previous divorce system in England and Wales required one spouse (the petitioner) to initiate the process of filing for divorce and, in the process, make an accusation about the other spouse’s (the respondent) conduct.

The petitioner could choose from three reasons – adultery, unreasonable behaviour, or desertion. If one of these three reasons could not be proven then the separating couple faced two or five years of living apart in a ‘separation’ period before the marriage could be legally dissolved.

Resolution, an organisation for family lawyers who are committed to resolving matters in a constructive and non-confrontational way, has led a campaign for no fault divorce laws since 2018.

How have the no fault divorce laws changed things?

Justice Secretary, Robert Buckland, when the Act was passed in 2020, said the new laws are designed to “stop divorcing couples having to make unnecessary allegations against one another and instead help them focus on separating amicably“.

Adding:

The new laws will mean that instead of having to attribute blame to one party, a couple can mutually cite ‘irretrievable breakdown’ as the sole ground for wanting to obtain a divorce.

This can be done in a joint statement or by an individual. Either spouse will be able to provide a statement saying it has broken down without having to provide evidence about bad behaviour.

The divorce application can be made online, meaning the postal delays can be avoided. There will be no requirement for the respondent to defend or to cross-apply for a divorce.

Once the application has been made, the applicant will have to wait until 20 weeks have elapsed from when the respondent is served with the application, to apply for a conditional order. This period will allow both parties to reflect on their decision to divorce. The applicant can then apply for a divorce or dissolution final order after six weeks have elapsed from the date the conditional order was made unless they are in the process of resolving financial matters.

Will the no fault divorce laws provide enhanced support to victims of domestic abuse?

The new laws also have the benefit of not allowing victims of domestic abuse to be trapped by their abusive spouses by them contesting a divorce. In the past, domestic abusers have taken advantage of previous laws and contested a divorce application in order to exercise further coercive control over their victim. The new laws prevent them from doing this.

Why does no fault divorce matter?

The previous law was set out in a statute that was passed in 1973 when people’s attitude to marriage and divorce was very different and society has greatly changed since then. We have moved on.

A change in divorce law has been long-awaited by many family lawyers who consider the now previous laws to be outdated, simply increasing animosity and acrimony in already difficult circumstances. In this day and age, it’s unfair that a couple is forced to stay together even if they have tried to make their marriage work but have been unsuccessful.

Despite the Act representing a welcomed change for many family law professionals, there are concerns that removing the blame from divorce proceedings and simplifying the process will lead to a spike in divorce cases.

However, it has been stressed that the focus of the new laws ending the ‘blame game’ will prevent situations where the law exacerbates conflict and harm to an already fragile relationship, particularly when it comes to dealing with other issues that inevitably arise from the breakdown of a marriage, including arrangements for the children of the family and the matrimonial finances.

However, despite the landmark change to English and Welsh divorce law, the law in respect of financial provisions on divorce will remain the same.