What is the difference between a ‘fault’ and ‘no-fault’ divorce?

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Couples in the UK who are looking to legally end their marriage or civil partnership will soon find the process simpler and more straightforward.

In April 2022, a new ‘no-fault’ divorce bill will come into law, allowing couples to receive a divorce without the need for one spouse to apportion and prove blame for the breakdown of the relationship on the other partner.

It’s hoped that the new system will both make the divorce process simpler while encouraging couples to work constructively to resolve some of their differences, agree upon an equitable division of their shared assets while making provision for any dependents.

How will the new system differ from the existing one particularly when it comes to the issue of ‘fault’?

What is the current law?

At the moment the divorce system has the concept of ‘fault’ at its heart. In order to secure a divorce without a statutory delay, one spouse initiates proceedings and alleges fault on the behalf of the other. The court will then establish the fault by using one of five reasons:

  • Adultery
  • Unreasonable behaviour
  • Desertion for at least 2 years
  • Separation for at least 2 years with the consent of both parties
  • Separation for at least 5 years even if one party disagrees

In practice, this means that the divorce petition is brought by one party who in effect blames the other party for the divorce. If the other half of the couple disagrees with the divorce or the facts being used to establish it, they can then contest the divorce. In some circumstances, they may even be able to prevent it.

In practice, most divorce proceedings have not been contested and a very small number every year are prevented. However, the admittance of fault is often wrongly believed to influence how assets may be divided after the divorce.

The new law will remove the principle of ‘fault’

It has long been argued that the need to assign fault to secure a divorce has been a cause of unnecessary stress and conflict, encouraging couples to focus on the negative factors that led to the breakdown of their relationship.

From April 2022, this will change in England and Wales, with the need to prove fault removed. Instead, The Divorce, Dissolution and Separation Bill will remove the need for one partner to blame the other for the irretrievable breakdown of their relationship. Couples will also be able to make a joint application for divorce. The new divorce process will still involve the two stages of decree nisi and decree absolute, but the names of these will change. The decree nisi will become a conditional order of divorce and the decree absolute will become the final order of divorce.

A simpler system

In summary, while the current divorce law requires one party to prove that the other party was responsible for the irretrievable breakdown of the relationship, the new system will remove that requirement. Instead, one or both parties will be able to petition for a divorce and this will be granted after a 20 week period of reflection.

If you’re currently considering divorce and would like to receive confidential advice regarding the process and your options, call 01244506444 to speak to our experienced team of divorce solicitors at Freeman Jones today.

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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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