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Danielle Taylor and Heather Souter | 5th May 2022

‘No fault divorce’ : Key questions answered


Danielle Taylor and Heather Souter | 5th May 2022

‘No fault divorce’ : Key questions answered

‘No fault divorce’ came into action from 6th April 2022. Married couples will be able to divorce without assigning blame in England and Wales. This is a sea-change to the current legislation, which requires an element of fault or for couples to live apart for two years to divorce with consent.

It is hoped and anticipated that the change will allow couples to formally end their marriage on a far more amicable basis.

‘No fault divorce’ will not immediately have a knock-on effect on finances, where conduct continues to be a factor the court can consider. This is an area where litigants in person may feel encouraged to include irrelevant and unnecessary allegations of conduct against their spouse and engage in ‘the blame game’.

While it’s a positive move to take this element out of the largely administrative divorce process, it’s not the end of conduct allegations – and lawyers should be leading the charge in ensuring financial matters are dealt with constructively rather than litigiously wherever possible.

Key ‘no fault divorce’ questions answered

If you have questions about the new ‘no fault divorce’ option, hopefully you will find your answers below.  If not, please contact a member of the Family team with your question.

Why has it taken so long for ‘no fault divorce’?

As with changes to any legislation, there is a process that is fairly lengthy to ensure the law is fit for purpose. Added to delay caused by COVID-19, this has made it a bit longer than usual.
The most important thing is that this new law signals the support of the public and legislators towards a constructive mechanism for divorce.

Will there be a delay in processing applications, due to the pandemic and surge in applications once the law changes?

Paper applications already have a significant backlog due to limited court resources, but online divorces are generally much more efficient. In theory this should mean that the backlog in dealing with applications will decrease over the coming years.

But this doesn’t necessarily mean that divorces will happen more quickly; there is a new 20 week period that has to pass before the application for conditional order (previously known as decree nisi) and a six week waiting period between conditional order and final order (previously known as decree absolute).

Will ‘no fault divorce’ lead to an increased risk of fraudulent divorces – with online apps and no fault?

In a word, no. There are still safeguards in respect of service and acknowledgement to ensure the other party is properly informed of the process. While fraud is not impossible, there is less incentive to do it in a world of no-fault divorce, as you can obtain a divorce with no real ground for defence (unless there was no marriage or a technical reason that a divorce cannot happen).

The new legislation is definitely a step in the right direction, but family and relationship dynamics are complex, regardless of what is contained in a paper application in what is essentially an administrative process.

There remain other areas in which the impact of raising allegations placing blame on the other person and creating conflict can be harder hitting and further reaching, including finances and children, with the latter being often the biggest victims of a relationship breakdown.

What’s changed following the introduction of the new legislation?

The ‘”irretrievable breakdown of marriage” remains the only basis for divorce, but with the new “no fault” divorce legislation this no longer has to be proven.

Following the introduction of the new law, if one person in the couple determines that the marriage is over and files for divorce, that has now become the proof of the “irretrievable breakdown” of the relationship. There are no allegations made against the other person.

There has also been a notable change in the language. Old-fashioned terms have been replaced with more modern and accessible language. For example, “petitioners” are now “applicants”; “decree nisi” is now “conditional order” and “decree absolute” is now “final order”.

The other major change following the legislation is that individuals are no longer able to defend divorce proceedings. A divorce application can only be disputed if there is a legal basis (which is restricted to a small number of circumstances, such as the court lacking jurisdiction or the marriage being invalid). The court must make a divorce order unless the application is validly disputed.

Who files for divorce?

It is now possible for divorce applications to be filed by one spouse or both spouses jointly. This means that both individuals can be applicants. However, this does require some duplication of documentation and can lead to some complexity in the event that one person changes their mind.

What about the cost of divorce – who pays?

The costs of the divorce are not dealt with in the application for “no fault” divorce. Individuals are able to make a separate application to deal with costs (for example, where someone disputes the divorce process or purposefully tries to frustrate the service of documents). Most of the time costs will no longer be a significant point within the divorce process. Many couples agree how they will divide the relatively low cost of the divorce process and this can be dealt with amicably.

Will the changes make getting a divorce quicker and easier?

Following a change in the procedure a couple of years ago, the divorce process is now almost exclusively done online, with a small number of circumstances in which a paper application can be made. The introduction of the online system has largely been a success and speeded up the time it takes for the court to deal with divorce applications, although paper applications already have a significant backlog due to limited court resources.

The introduction of “no fault” divorce doesn’t necessarily mean divorces will happen quicker as there is now a mandatory 20 week period between the issue of the divorce application and an application for the conditional order. There also remains the statutory period of six weeks between the conditional order being made and the final order being applied for.

Likewise, couples will often be advised to delay finalising the divorce process until any financial issues are resolved in their entirety – it’s not just the divorce process that needs to be taken into consideration.

What do I need to consider about divorce and dealing with finances?

Whilst there has been a change to the divorce process, the process for dealing with finances on the breakdown of a marriage has not changed. The divorce application still enables you to indicate that you are seeking a financial order from the court. This doesn’t commence court proceedings or mean that matters cannot be dealt with by way of agreement, but it does enable applications to resolve financial matters more easily.

In a nutshell, it’s important to remember that the divorce itself does not resolve financial matters, so it’s really vital to take advice on financial matters and ensure that these are properly dealt with upon divorce. Otherwise, you could find that the other person makes a financial application after the divorce has been concluded.

Finances are usually dealt with through a process of disclosure and negotiation. Where there are complex financial assets (including some businesses, trusts, pensions and other assets), you might also need to get legal experts involved to advise on the implications of dividing those assets.

I’d always strongly advise couples to each get advice before deciding how to divide their finances. Once a couple has decided (whether via solicitors or any other route) how assets will be divided between them, it is important that this is finalised into a consent order to formalise the agreement and dismiss future claims.

For more information, or if you have any questions about ‘no fault divorce’, contact our Family team.

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