What Are The Pros And Cons Of No-Fault Divorce?

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From pros of no-fault divorces to arguments against it and your frequently asked questions, we’ve got everything covered in this detailed guide.

After decades of debate, no-fault divorce is due to come to into effect in England and Wales in April 2022. These latest UK divorce law reforms, which were confirmed by the government in 2019, mean that couples will be able to get divorced without one party having to lay the blame for the relationship breakdown on the other party. This change will also apply to civil partnerships.

What do the reforms mean?

The new law will introduce a number of significant changes into how divorces are administered in England in Wales:

Divorce can be granted without one spouse blaming the other

The most significant change to the divorce law is the removal of fault from the divorce process. Divorces will now be granted purely on the basis that the relationship has broken down. There will no longer be any need to cite any of the 5 reasons for divorce for a legal separation to be confirmed.

Joint applications for divorce can be made

Under current law, one party (called the petitioner) has to issue divorce proceedings against the other (called the respondent). Under the new system, both parties will be able to make a joint application.

It will introduce a minimum timeframe

To counter accusations that the reforms are legalising the ‘quicky divorce,’ a minimum timeframe of 20 weeks from the application being made to the divorce being granted will be introduced. This is called a ‘period of reflection’ and is designed to give couples the chance to consider their differences and resolve issues before proceeding to a divorce. It will also be possible to enter into a separation agreement that outlines the terms of the separation and gives the parties room to reflect prior to proceeding to divorce if that is appropriate.

The divorce process will still proceed in two stages, decree nisi and decree absolute, which is the formal order of divorce, but the stages will have new names: the conditional order of divorce and the final order of divorce.

Divorces can no longer be contested

Currently, if one party submits a divorce petition citing either the behaviour of their spouse or following a period of separation, it’s possible for the other party to contest the application. Under the new system, this will no longer be possible.

The reforms will potentially make divorce easier to obtain but many people still have reservations about whether or not a no-fault divorce is really the best approach.

Why should couples consider this route and are there any arguments against a no-fault divorce in UK law?

The advantages of a no-fault divorce

According to advocates of the change, including the former President of the Supreme Court, Baroness Hale, the reforms will help to reduce the distress of divorce. This should, in turn, enable both parties to successfully negotiate their separation and move on with their lives with less rancour.

It’s believed that creating the circumstances for a less stressful and accusatory divorce will help parties negotiate vital aspects of their separation, such as the division of assets and the care of children. When couples have children, anything that can be done to minimise the degree of bad feeling during divorce proceedings is beneficial to their wellbeing.

The reforms should also help reduce the likelihood of long and acrimonious legal proceedings, which take up valuable court time. Divorces will be easier to conclude in a timely manner.

It’s also argued that the current process encourages couples to focus on the negative aspects of their relationship, looking for and overemphasizing the degree of fault on the part of one of the partners. It encourages both couples to remain stuck in some of the details of their relationship breakdown, rather than moving forward or finding common ground. It has also been suggested that by removing the need to focus on fault, the new system may save some relationships.

A more accessible divorce system also empowers people who previously might have feared divorce because of the potential delay and legal consequences. Individuals who felt trapped in unhappy or abusive relationships will be able to terminate their marriage and move on much more easily.

What are the arguments against no-fault divorce?

The reforms have not been without some controversy. Attempts have been made for decades to move the law in England & Wales towards more of a no-fault divorce approach but these had been resisted. The arguments for this have been well-rehearsed, and those opposing the reforms still believe they hold true.

Firstly, many take a moral or religious view, suggesting that making divorce easier threatens the sanctity of the institution. People may give less thought to the consequences of marriage if divorce is made overly easy.

Making divorce more accessible and straightforward might make couples opt to legally separate whenever problems arise in their relationship. They may be less inclined to take the time to attempt to save their relationship. Proponents of reform argue that these concerns are unfounded. Divorce is a reality and with the best will in the world, many couples will never be able to salvage their relationship. The new law seeks to minimise the collateral damage to the parties involved and any dependents while offering safeguards and time for reflection.

Perhaps the most compelling argument against the no-fault approach is that it fails to hold partners accountable for unreasonable behaviour within the relationship. In many cases, one partner has been responsible for the breakdown of the marriage due to abusive behaviour or infidelity. A no-fault approach gives the offending partner the option of a divorce without being held accountable for their behaviour. This, in turn, can make it difficult for the other partner who may feel that justice hasn’t been served.

The experienced team of divorce lawyers at Freeman Jones can provide you with confidential advice regarding your options. To book a free 30-minute consultation, call 01244 506 444 or email info@fjsolicitors.co.uk.

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Author Colin Freeman View Profile
Colin qualified as a solicitor in 1998. He specialises predominantly in family law, litigation / dispute resolution, wills, probate and settlement agreements and has notable cases reported in the Court of Appeal and High Court.
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