Looking to learn more about the no-fault divorce bill? We’ve produced a detailed guide to help you with any questions you have regarding no-fault divorce bill…
It’s estimated that around 42% of marriages in the UK will end in divorce. Over time, the laws that govern the divorce process in England and Wales have been subject to change and development, reflecting shifting moral attitudes and changes in the patterns of marriage, separation, and life expectations.
Over the past few decades, there have been attempts by lawmakers to provide a means to divorce that helps to minimise the ongoing emotional disruption to the lives of the parties and their dependents without damaging marriage as an institution.
For the past three decades, the debate has centred around the practicalities and implications of introducing a so-called ‘no-fault divorce’. Previous attempts at reform made divorce more accessible but failed to address the requirement for blame to be apportioned to one of the parties for the breakdown of the marriage. This was widely seen as out-of-date and did not reflect current realities.
The most recent changes finally overcame longstanding objections to the principle of no-fault divorce.
How does the divorce system currently operate?
Traditionally divorce has been fault-based. No-fault divorce, as the name suggests. removes the requirement to prove one party is at fault for the divorce.
Until the change, to file a divorce petition a party (the Petitioner) must prove the marriage had broken down irretrievable and this was done by relying upon one of five reasons (known as the five facts) blaming the other party (the Respondent) for: –
- Unreasonable behaviour
- 2 years separation with the consent of both parties
- 5 years separation without the consent of both parties
In addition, until the change in law, the Petitioner had to provide particulars to support and prove the claims being made.
The introduction of the new act results in parties now only needing to provide a statement that their marriage has broken down irretrievably.
When will no-fault divorces become law in the UK?
The Divorce Dissolution and Separation Bill received Royal Assent on June 25th, 2020 and will come into law on April 6th, 2022. It aims to erase a number of the problems associated with the previous law. Because the bill removes the requirement for one of the parties to apportion blame for the relationship breakdown on the other party to receive a divorce, it has been called the ‘no-fault’ law.
The reforms are arguably the most significant changes to divorce law in England and Wales for 50 years. It’s hoped and expected that the bill will have a positive impact on the way divorce is handled. The reforms aim to reduce the level of conflict between couples who are pursuing a legal end to their marriage or civil partnership. The reforms were based on public consultation and close working between the Ministry of Justice and the Family Procedure Rule Committee.
It had originally been planned for the act to come into force in Autumn 2021, but it has been delayed. This is to allow HM Courts & Tribunals Service online divorce portal to be updated to be able to manage the reformed system adequately.
Why has the law been changed?
The bill was introduced in parliament in June of 2019 after extensive public consultation and decades of debate and campaigning. The new law reflects the view of many and means that we may finally have a law that meets the needs of the 21st Century regarding the process of divorce.
It will remove the need for either of the parties seeking a divorce to apportion blame to the other party. It’s hoped that this will make the process less contentious, encourage dialogue and resolution while reducing the potential impact of conflict on any children or other dependents.
It’s been consistently argued that the current divorce laws have the effect of encouraging acrimony, as they require a spouse to prove unreasonable behaviour, desertion or adultery, for a divorce to be granted without the need to wait. If a spouse provides their consent, then this period is currently two years, rising to five years if the spouse withholds their consent. This has, in effect, handed the timing of a divorce to one or both of the partners who may withhold their consent if they feel they have justification. This can have a range of financial and personal implications making it difficult for the other party to move on with their life.
How will no-fault divorces work?
The process will remain very much similar to the current divorce process.
The initial step is to complete the divorce petition and serve a copy on the Respondent unless it is applied for jointly. Once the petition is complete and accurate, it will be filed with the Court along with a statement of the applicant(s) confirming the marriage has broken down irretrievably. The Court fee for filing the petition is £593.00 at the time of writing. The Respondent will file an Acknowledgement of Service to confirm service, again unless applied for jointly in which case the service will not be necessary.
The petition can no longer be defended therefore the Court will issue a conditional order of divorce (previously the decree nisi) after a minimum of 20 weeks from when the petition was issued providing the applicant(s) confirm they wish to proceed. Following a further period of 6 weeks and 1 day, the petitioner can then apply for the final order of divorce (previously decree absolute).
What are the arguments against the law change?
For many years, legislators appeared reluctant to modernise the divorce laws in line with a no-fault approach. Although, this has for many years seemed like an obvious change to make, it has been resisted particularly from those with religious or moral concerns regarding the sanctity of marriage.
With a no-fault approach now about to come into effect, these concerns are still being voiced. Some people believe that if divorce is made too easy, couples may move too quickly towards divorce, giving them less incentive to work out their difficulties. Campaigners have pointed to the emotional costs of divorce, particularly for children, and that more resources should instead be directed towards marriage counselling services.
Another concern is regarding relationships where one partner has been violent, emotionally controlling or unfaithful. The other partner may feel that blame in these instances should be recognised, and if the system does not recognise that fact, then an injustice has been carried out. This may make it difficult for them to move on.
Are these concerns justified, and what do legal practitioners specialising in the field think of these reforms?
What do family lawyers think about the law change?
The reforms are a result of public and professional consultation over a number of years, following a debate that has taken place for decades. There has been widespread recognition that the present system was not supporting separating couples and did little to make divorce less likely. The changes are designed to recognise that even with the best will in the world many marriages will fail. When they do fail it’s important to minimise the emotional fallout, particularly in relation to children. It’s hoped that the changes will help people to move on with their lives narrowing any potential disputes and providing for an amicable split.
On balance, family lawyers like ourselves disagree with some of the concerns regarding the law change. In our experience, few people enter into divorce proceedings lightly, and those that do, may not pursue the process right through to divorce. The reform does in fact tackle some of the issues most likely to cause problems within divorce proceedings.
The need to apportion blame is a cause of huge emotional and administrative challenges. At Freeman Jones, we believe that removing this requirement will help those who believe that their marriage is beyond repair to deal with the full range of legal practicalities without dwelling on some of its causes. Instead, the emphasis will be on reducing potential animosity, finding common ground and promoting a constructive attitude between the parties both through the divorce process and going forward.
We’re particularly confident that the reforms will be beneficial to children who are stuck in the middle of a messy divorce. Children can sometimes find themselves having to pick sides during a divorce, as parents may try to use the child against the other parent (e.g. denying contact) or taint the child’s beliefs and feelings about one parent by making negative or untruthful remarks about the other. The no-fault divorce process takes away the need to blame the other person and instead places a focus on creating a resolution and a better atmosphere surrounding the divorce.
It is sometimes believed that if one party places blame on the other, they will have an advantage when it comes to the financial settlement. However, the behaviour that an individual is being accused of rarely is taken into account or relied on when calculating the financial settlement of the parties.
The reforms have not been rushed into and reflect the priorities of professionals working in the field, and the broader opinions of the public. With any legislative change, particularly in sensitive areas such as divorce, there are always likely to be unintended consequences, but on the whole, the reforms should be a net positive for couples.
We believe that it will help people who cannot repair their relationship to legally separate and move on with their lives. It will also provide a better framework for helping them resolve outstanding issues while giving them an opportunity to reconsider their decision.
I want a divorce but is it now worth waiting until the no-fault divorce law comes into force?
It very much depends on your circumstances. If you believe that you can wait until the new law comes in then it may be worth waiting, as it will take away the need to place blame and for blame to potentially be put on you. However, you should do whatever feels best for you, and you may feel as though you cannot wait until Autumn 2021. Your financial circumstances may also dictate when you need to get a divorce and you should seek expert advice in this regard as soon as possible to ensure your position is protected.
Is a no-fault divorce cheaper?
It is hoped that the new law will help to decrease some of the costs, but it will not reduce them significantly as the general procedure will remain the same and most costs arise dealing with the financial aspect of the divorce.
Will the reforms make a “quickie divorce” possible?
No, the no-fault divorce process is unlikely to be any faster than the current divorce process, meaning that a “quickie divorce” is not possible this way. The aim is to make the process simpler, remove potential points of contention while allowing the parties time to reconsider.
Does the Act only apply to marriage and divorce?
The simple answer is no.
The Act covers Marriage and Civil Partnerships equally, both of which establish the same principle that there is no longer a requirement to establish a fact to prove the irretrievable breakdown of a marriage.
It also still allows for applications for judicial separation rather than divorce.
Need assistance or advice?
Freeman Jones Solicitors offer a free 30-minute consultation in order to discuss your matter and advise on how best to proceed with no-fault divorce, just complete your details below or give us a call on 01244 506 444 to arrange a convenient appointment.