No Fault Divorce – What do we know and how will it change the divorce landscape?
/The Government has listened to the outcries of people who are stuck in marriages that they cannot divorce from or those who do not wish to apportion any blame to their ex-partner and are now introducing a ‘no-fault” divorce. This new method of divorce will begin from the 6th of April 2022.
One of the reasons for this welcomed change is that there should no longer be the current ‘blame game’ that divorcing parties currently often have to rely on (if spouses are seeking to divorce prior to being separated for 2 years).
The current law has 5 ‘facts’ in which you can divorce, these being as follows:
Unreasonable Behaviour
Adultery
Two Years Separation with Consent
Five Years Separation
Desertion.
It is only ground 3, and perhaps arguably 4, that does not have an element of blame or the requirement for a petitioner to ‘prove’ their divorce to a certain threshold. Even where a couple has been separated for a period of 2 years, if the opposing party does not agree to a divorce (with consent) then the fact of 2 Years Separation with Consent cannot be used and a petitioner will likely look to a ‘fault’ fact.
The change and introduction of the no-fault divorce will not simply add a way in which a person can petition for divorce but will go further to replace the above 5 facts with no-fault divorce. Parties will only be able to divorce their spouse using the new no-fault divorce.
This represents a big change to the divorce landscape and one that arguably is very desirable.
So what are the changes? Divorce applications will be made by either spouse or jointly by both spouses. This change to allow a joint application appears to be a bid to promote spouses working together in ending their relationship.
The change that is perhaps the most welcome is that a party cannot contest a divorce. This means that if one party wants a divorce, they should get this without fear of their spouse defending the petition and possibly having to go to Court and spending considerable amounts of money doing so.
This also removes the worries and concerns that we often see from our clients about what they need to do, or prove, if a divorce is not agreed.
There remain the 2 stages of the divorce process of the Decree Nisi (now to be referred to as ‘Conditional Order’) and the Decree Absolute (now to be referred to as ‘Final Order’. The period of time for a divorce is also getting a tweak and will take a minimum of 6.5 months. This is perhaps to assist parties in dealing with any issues regarding finances or arrangements for children.
There will be the introduction of a new minimum of 20 weeks from the start of the divorce application to when the Conditional Order can be made. Following the making of the Conditional Order, spouses will need to wait a further 6 weeks before applying for the Final Order.
One issue that comes to mind is the protections that parties might lose on the making of a divorce. The protections are both financial and in relation to home rights. This should be something that people will need in mind when petitioning for divorce or responding to a petition. In the vast majority of cases we would advise entering into a financial agreement (often referred to as a clean break) about how assets are split on divorce, to protect a client’s assets and claims.
This is a welcomed change to the current legislation which was introduced in 1973. Spouses will be able to work together to amicably end their marriage or seek to end their marriage without concerns about whether they are entitled to a divorce.
Thank you for taking the time to read this and we hope it provides you with a bit of information about how the divorce landscape is changing.
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