It's time to end the Blame Game: No Fault Divorce is on its way

On 26 June 2020, the Divorce, Dissolution and Separation Bill gained Royal Assent and became the Divorce, Dissolution and Separation Act 2020.

This ended years of campaigning to remove the need for husband or wife to blame the other when seeking a divorce.

The new Act, which will come into force on 6 April 2022, will now allow married couples to commence divorce proceedings without assigning blame to one another.

Current Law

Under the current law, couples wanting to divorce, must rely on one or more “facts” to prove that their marriage has irretrievably broken down. These facts are:-

Adultery;
Unreasonable behaviour;
Desertion;
2 years separation with consent; and
5 years separation without consent.

A key point to note is that under the current law, a divorce petition is brought by one party who must apportion “blame” to the other party when relying upon facts such as “adultery” and/or “unreasonable behaviour.”

The New Act

Under the new Act, the five facts for divorce are replaced with a requirement that either one or both spouses provide “a statement of irretrievable breakdown”. The statement is conclusive evidence that the marriage has broken down. Furthermore, under the new Act, both spouses can be represented by one solicitor which is a complete change to the law as it currently stands.

There will be some changes in terminology under the new Act, with the divorce orders being referred to as Conditional Order and Final Order instead of Decree Nisi and Decree Absolute. This is aimed at making the terminology less alien and more easily understood for individuals going through the process of divorcing.

The new Act will remove some of the delays in the initial stages of issuing the Divorce Petition, but it is not a case of a “quickie divorce”. The parties must wait a minimum of 20 weeks from the date of the application for divorce, to when the Conditional Order can be made. They then need to wait a further six weeks until the Final Order which then ends the marriage. This is intended to allow for a period of reflection and to resolve financial and children matters.

Is it better to wait for the New Act to come into force?

If you are ready to divorce now, it may be advantageous for you to commence proceedings now rather than to wait for the new Act to come into effect.

However, there are certain circumstances in which you may prefer to wait for the no-fault divorce, such as:-

You wish to commence divorce proceedings upon one of the five facts as set out above. However, your spouse is intending to challenge your application. By applying for a no-fault divorce under the new Act, your spouse will be unable to do this and you can then avoid the stress and expense associated with court proceedings.

Your spouse does not agree to a divorce or dissolution and you are unable to rely upon any of the five facts referred to above. Under the current law, you would have to wait 5 years to apply for a divorce without your spouse’s consent. By applying for a no-fault divorce under the new Act might actually help you obtain a Final Order quickly and with more ease.

You have been separated from your spouse for 5 years but you know your spouse will challenge the divorce on grounds of “grave financial hardship”. Rather than having to go to court to argue your case, you may wish to wait for the no fault divorce to come into effect. This will certainly keep your costs down and make the process a whole lot easier.

Of course, it is worth seeking expert legal advice about whether applying for divorce or dissolution now or waiting for no-fault divorce would be in your best interests.

For more information, please contact Anila Naeem at anaeem@judge-priestley.co.uk or any member of our family team.