Where are we now on ‘no fault’ divorce?

The campaign for ‘no fault’ divorce was a lengthy one in which family justice professionals pioneered for change in draconian laws surrounding divorce. Below we explore some of the most frequently asked questions:

I am getting divorced now. What is the law as it stands?

The law as it stands means that unless a couple wish to remain separated for a period of two years (if both parties consent to the divorce) or five years (if one party will not consent to the divorce) one party to divorce proceedings must apportion blame to the other. They have to show the court that the marriage has irretrievably broken down and that either one party has committed adultery, or they have behaved in such a way that the other cannot reasonably be expected to continue to live with them.

Who demanded the change, and what exactly will ‘no fault’ divorce mean?

The campaign was spearheaded by Resolution, an organisation for family lawyers who commit to a code of practice which focuses them to resolve matters in a constructive and non-confrontational way. Family justice professionals have long realised that the current laws were out of date and did not encourage families to separate amicably.

The new ‘no fault’ divorce legislation means the so-called ‘blame game’ will soon come to an end and hopefully make the divorce process less hostile and  less stressful. This will particularly be the case for those couples who are parting on an amicable basis and have chosen to go their separate ways without a particular cause. It will also benefit children within separating families due to the minimisation of conflict, removing unnecessary conflict and damage to families.

From when will this new legislation apply?

The Divorce, Dissolution and Separation Bill gained Royal assent on 26 June 2020. It is expected that the new no fault divorce law is to be implemented in the autumn of this year (2021).

How will divorcing couples use this process?

Spouses will apply for a ‘divorce order’. The process will allow one spouse to apply or for both to jointly apply for the divorce. They will make a statement of irretrievable breakdown instead of relying on a specific fact.

Will the process be quicker?

Not necessarily. The reform will see the introduction of a 20-week period between the initial petition and a conditional order. This period is to allow the parties to reflect and be absolutely certain that they want to proceed with a divorce. The conditional order will not be made final until at least six weeks have passed. The exact timing will still depend upon when the parties agree financial matters, and parties to a divorce are often advised to wait until they have a binding financial order before making their divorce final.

Will the new process benefit me financially?

No, the new process will not make a difference to how finances are dealt with on divorce. The process will remain the same. However, the 20-week period described above will allow parties to a divorce to make progress on reaching a financial settlement. The process will not necessarily be cheaper, but with less hostility the process may be more straightforward as a result.

 If you need any advice about divorce or financial settlements please contact Hannah Nicholls, Associate Director in the Family Law department, at hnicholls@thursfields.co.uk or on 0121 227 3377.

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