What is no fault divorce?

Posted: Tuesday September 22 2020

By: Rachel Roberts

What is no fault divorce?

You may have heard in the press that the government has recently passed some legislation which removes the need for someone seeking a divorce to blame the other party in order to obtain a divorce. However, what does this mean in practice if you are looking to divorce your spouse?

The background and current law

To put this change in law into context, this is something of a landmark event in family law terms. It follows 30 years of campaigning by family lawyers.

The current law is under the Matrimonial Causes Act 1973, and significantly out of date when you consider the enormous cultural and attitude changes in society since then, particularly towards divorce, which is no longer seen as a shameful occurrence, but rather simply a reflection that sadly, a marriage has broken down.

At present, in order to get a divorce, you have to establish that the marriage has broken down, by proving one of 5 facts:

  • Adultery;
  • Unreasonable behaviour;
  • Two years separation AND the respondent agrees to the divorce;
  • Five years separation;

In practice, many people do not want to wait 5 or even 2 years to get divorced, and most rely on unreasonable behaviour. Family lawyers encourage examples of behaviour that are anodyne, so sufficient to show the breakdown but without causing unnecessary acrimony. However, that does not always happen and even when it does, the whole process of blame sets an unfortunate tone to the start of the process. This is particularly sad when there are children involved, and the parties will need to work together to parent them in the future.

It is for that reason that family lawyers have fought so hard for this change.

What will the process look like and when will it be in place?

It is not expected that the legislation will come in to place before late 2021 or even early 2022. For many people, this may be too long to wait, and they will need to rely on the current law.

The delay is to enable the new process to be put in place, as well as the new forms that will be required and amendments to the online portal where petitions are issued.

The press have sometimes described it as a “quickie divorce” but in reality, this is not the case. There will be a minimum overall timeframe of 6 months from start to finish.

The other main changes are:

  • The petition can be bought jointly by the parties;
  • The application will simply say the marriage has irretrievably broken down, with no need to give a reason;
  • There is no opportunity for the respondent to defend the proceedings;
  • There will be some changes in terminology, with the divorce orders being referred to as conditional order and final order, instead of decree nisi and decree absolute.

The above represents a significant change in the process and will hopefully enable people to end their marriage in a more civilised manner that reflects modern views.

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# What is no fault divorce?