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Written by:

Davisons

Posted on

February 16, 2023

Category

No Fault Divorce – 9 months on since The Divorce, Dissolution and Separation Act 2020 came into force

We asked one of our specialist Family Law solicitors, Robert Poulsen for his thoughts on how The No Fault Divorce Act 2022 has impacted the legal industry…

What are your thoughts on the no fault divorce act?

No-fault divorce came into force on 6 April 2022, giving separating couples a less acrimonious divorce process, as they no longer need to apportion blame for the breakdown of their marriage. The reform is not intended to establish a means for a quick divorce but an “end to the blame game”, meaning a kinder process.

No-fault divorce is the biggest shake up in family law for decades. It is a very welcome and long-awaited amendment to the law. The aim is to make it easier for couples to manage their separation and work together. The divorce process has been brought into alignment with financial remedy proceedings where conduct is rarely taken into account. There is now one less distraction along the route to settlement.

The framework for our divorce system dated back to 1973 and the requirement of one party to prove the fault of the other in order to obtain a divorce within two years of separation was very out of sync with modern values and views. Taking some of the heat out of the divorce process itself, has resulted in less acrimony when couples decide that their marriage is at an end. This enables them to focus in a more dignified way on dealing with the financial issues and the arrangements for their children.

No-fault divorce is a good thing.

How is no-fault divorce impacting the divorce process?

No-fault divorce has changed the process of applying for a divorce in the following ways:

Instead of relying on facts to prove that the relationship has irretrievably broken down, either or both parties may apply to the court for an order that dissolves the marriage, citing ‘irretrievable breakdown’ as the sole ground for obtaining a divorce. The parties can do this by way of a joint statement or individually.

It is not possible to contest the divorce save for contesting the jurisdictional basis of the petition, the validity of the marriage, fraud or procedural impropriety. Contesting jurisdiction will only be relevant in international cases where one of the parties seeks to secure the jurisdiction of another country.

Plain English is used to make the process more accessible. For example, ‘decree nisi’, which is the penultimate decree of divorce granted by the court, has changed to ‘conditional order’. ‘Decree absolute’, which is the final decree of divorce and legally dissolves the marriage, has changed to ‘final order’.

Previously, the fault-based divorce system caused increased hostility and discord between the parties. Removing blame has created a better foundation for discussing child arrangements and financial matters. All these changes underpin a real drive to reduce conflict for separating couples.

How has no fault divorce benefitted legal professionals?

Whilst no fault-divorce does not automatically solve all the subsequent disputes, conflicts and concerns faced by couples who are keen to dissolve their nuptials, it does simplify the law and makes the process more affordable.

The real job of a family lawyer is to enable parties to navigate through the divorce process towards a fair outcome as quickly and easily as possible. There is a skill in not getting caught up in the emotion. The goal is to minimise the opportunity for conflict, rather than exacerbating it, and to focus on the key issues that may make a difference.

Being drawn into the blame game can therefore be counterproductive. In many cases, it will render settlement less likely and serve no purpose other than to potentially permanently undermine the relationship between the parties, who may have a lifetime of co-parenting ahead of them.

The change in the law has therefore been supported by the majority of family lawyers to bring divorce law into the 21st century. Removing the need to blame the other spouse for the breakdown of the marriage can result in a more dignified process for all concerned and enable divorcing spouses to focus on resolving the real issues between them. In short, no-fault divorce makes the divorce process kinder.

What are the main advantages of the no-fault divorce act for clients?

Under the old law, irretrievable breakdown had to be established by one of five facts, the most common being unreasonable behaviour or adultery. In the absence of blame, couples had to live apart for two years with consent or five years without. Under the new law, there is no longer any need to prove fault or to live apart for two years. The fact that the marriage has broken down is enough.

An emotive divorce petition allocating blame and detailing the reasons for the marriage breakdown significantly increased acrimony and wasted legal costs in the process whilst it generally did not affect the outcome of financial settlements.

As the law stood, a person petitioning for divorce had to blame their spouse for the irretrievable breakdown of their marriage or separate and wait a minimum of two years.

The facts available for the ‘fault’ route were adultery, unreasonable behaviour, or desertion (which was rarely used).

If the parties had been separated for two years, a spouse could divorce their partner without blaming them provided their partner consented to the divorce. If their spouse did not consent, they needed to be separated for five years before a petition could be filed.

Waiting for two years was deeply unattractive for couples who knew their marriage was over and wanted to move on with their lives. Many people were therefore forced to blame their spouse for the breakdown of the marriage so that they could begin the divorce process immediately.

No-fault divorce assists clients by reducing hostility and providing opportunities for parties to end their marriage collaboratively and amicably. The positive effects are not only felt by the parties to a marriage, but, importantly, by their children. The reforms also reduce costs for divorcing parties which might otherwise have been incurred negotiating the terms and/or basis of the petition and/or dealing with cross-petitions.

Are there any disadvantages of no-fault divorces?

Whilst proponents of marriage say it is now far too easy to divorce, and no-fault divorce diminishes the importance and status of the constitution of marriage, many have reservations about whether a no-fault divorce is really the best approach.

To counter accusations that the reforms have legalised the ‘quicky divorce,’ there is a minimum timeframe of 20 weeks from the application being made to receiving confirmation that a conditional order of divorce may be made. This is called a ‘period of reflection’ and is designed to give couples the chance to consider their differences and discuss any financial or child arrangement issues before proceeding to a divorce. It is also 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.

Divorce can be mentally challenging and emotionally draining for a sustained period. Whilst the new 20 week waiting period in no-fault divorce may be a welcome cooling off period for some, it could be seen by others as five months of being in limbo. However, in reality many divorces are not dealt with any quicker due to financial settlement proceedings.

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.

Frequently asked questions about the No Fault Divorce Act

1. Will it make divorce quicker?

No, this is not the “quickie divorce” some had hoped for. There is a minimum period of 20 weeks from the start of the proceedings to receiving confirmation that a conditional order of divorce may be made. This provides an opportunity for the parties to agree arrangements regarding finances and children. It can also give them time to reflect and an opportunity to reconcile if they choose to do so.

2. Will it make divorce easier?

Divorce is never easy, but the changes to the law have reduced unnecessary and additional conflict for couples. The ability to divorce jointly and without apportioning blame enables couples to divorce constructively and focus on the financial issues between them and, in many cases, those relating to their children. It also avoids unnecessary costs, which might be incurred negotiating the particulars of behaviour for the divorce petition and dealing with a cross-petition if the proceedings are contested.

3. Will this process make the divorce process simpler?

Yes, the legal process is now easier.

4. Do I still need a Solicitor?

In theory no fault divorce can make the process of divorce much more straightforward. However, it is just as important as ever to speak to an expert, who can guide you through the process with practical, sensitive advice. Whilst the legal process is now easier, there is a real danger that those applying for a divorce themselves may not be fully aware that ending the marriage alone does not bring to an end the financial claims and ties between the parties. These remain ongoing despite being divorced. Whilst there are warnings that parties also need to sever their finances with the granting of a clean break financial settlement order, there are many who fail to do so and risk leaving themselves open to future financial claims.

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