No Fault Divorce
The End to a Fault Based Divorce
Going through a divorce is often a difficult and emotional time for separating couples. Where parties seek to remain amicable throughout this process and afterwards, the existing divorce procedure can restrict couples abilities to do so.
The Divorce, Dissolution and Separation Bill was considered the introduction to an amicable divorce and the end of the ‘blame game’.
Where parties have not been separated for a period of two years or more, the current legislation governing divorce in England and Wales only allows for an individual to start divorce proceedings immediately by blaming their spouse for the breakdown of the marriage showing that the marriage has broken down irretrievably by citing the other’s adultery or to state unreasonable behaviour.
If parties seek to avoid blaming the other, or wish to approach divorce by agreement, the couple must show that they have been living separately and apart for two years or five years where one party does not consent to the divorce.
The introduction of ‘no-fault’ divorce will allow couples to divorce without unnecessary conflict.
The Government has confirmed that the new legislation will come into force on 6 April 2022 by way of the Divorce, Dissolution and Separation Act 2020.
How will the new divorce procedure work?
Couples will no longer be required to wait for a minimum of 2 years after separation to divorce without apportioning blame on the other. The parties can decide to make a joint application for a divorce.
What else will change?
A further significant change to the current legislation is that neither party will be able to contest the divorce. Under current legislation, the party who receives the petition made by their spouse has the ability to object to the divorce and, in some cases, can block its progress. Under the new legislation, this will no longer be possible.
Why is a no-fault divorce progressive?
Crucially the new legislation allows the couple to move forward without unnecessary conflict.
The requirement to apportion blame often has the effect of exacerbating acrimony between the parties, which often has a detrimental effect on the parties ability to resolve matrimonial finances and can lead to this aspect being contested in the court arena. The divisive approach can also affect child arrangements. Where couples are able to end their marriage jointly and mutually, it is believed that this will assist in resolving matters more promptly.
Who can apply for a ‘no-fault’ based divorce?
Married couples (including same sex married couples) and civil partners will be able to seek a ‘no-fault’ divorce from 6 April 2022.
The Divorce, Dissolution and Separation Act 2020 will amend the existing legislation in the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 to allow either or both parties to the marriage or civil partnership to seek a divorce or dissolution to their marriage or civil partnership.
How long will a ‘no-fault’ divorce take?
There will be the introduction of a minimum ‘waiting time’ of 20 weeks from application to proceedings with the divorce, designed to ensure that parties do not proceed lightly with the decision to end their marriage. This ‘period of reflection’ will allow couples to reconcile where possible.
Should parties continue to seek a divorce after this period of time, the minimum time frame for the divorce will be 6 months, which will also be effected by the financial remedy.
The restriction on applying for a divorce within 1 year of getting married remains.
Will a ‘no-fault’ divorce effect the outcome in relation to matrimonial finances or children matters?
It is believed that the ‘no-fault’ will only serve to have an positive effect on matrimonial finances and children matters by encouraging a more harmonious approach. However, the new divorce legislation will have not effect the current legislation that governs the division of matrimonial finances (primarily Section 25 of the Matrimonial Causes Act 1973) and the current legislation addressing children matters (the Children Act 1989).
Should I wait for the law to change before getting divorced?
Should you seek a divorce, we encourage you to take legal advice and speak with our Matrimonial lawyer to ensure that you are making a fully informed decision.
Should you require further information or seek an appointment to discuss separation please contact Petena Carrol, a Matrimonial Solicitor in our Family Team.
petena.carroll@mustoeshorter.co.uk
01305 752700