No-Fault Divorce

Traditionally divorce has been fault-based. No-fault divorce as the name suggested removes the requirement to prove one party is at fault for the divorce.

Before the change, in order to file a divorce petition a party (the Petitioner) must prove the marriage had broken down irretrievable and this was done by relying upon one of five reasons (known as fact facts) blaming the other party (the Respondent) being:

• Adultery
• Unreasonable behaviour
• Desertion
• 2 years of separation with the consent of both parties
• 5 years of separation without the consent of both parties
• In addition, until the change in law, the Petitioner has to provide particulars to support and prove the fact relied upon.

The introduction of the Act results in parties now only needing to provide a statement that their marriage has broken down irretrievably.

The Divorce, Dissolution and Separation Act 2020 (the “Act”) introduces a new no-fault divorce. The bill entered parliament in January 2020 and received the royal assent in June 2020.

It officially came into effect in the UK in April 2022.

The official act can be found here: The Divorce, Dissolution and Separation Act 2020.

People have been campaigning for a no-fault divorce for many years, with some going back to 1996.

It is believed that removing the need of fault will reduce the animosity and emotions that often come with divorce. This will, in turn, allow parties to focus on the central issues such as finances and children.

The current divorce process can, in some circumstances, result in one party being forced to stay in their marriage despite not wanting to. This was seen in the case of Owens V Owens 2018 where the Court did not accept that the husband’s behaviour amounted to unreasonable behaviour and so refused to grant the wife a divorce.

The new no-fault divorce allows parties such as Mrs Owens to end the marriage without blame. This case created a vast amount of public discussion around the current divorce process which eventually led to The Divorce, Dissolution and Separation Act 2020.

Many other Countries such as United States of America, China, Australia and Germany introduced a no-fault divorce prior to the 2000’s.

The benefits of a no-fault divorce include:

• People will no longer need to show their spouse is at fault for the marriage breakdown;
• It may reduce conflict and emotional stress both for the parties, and any children and it may also assist in an easier financial settlement agreement being reached;
• It allows for other reasons for divorce beyond adultery, unreasonable behaviour, and desertion;
• It allows the option to keep your private life private, i.e. you no longer need to disclose the details of adultery if you do not wish to;
• It may be less expensive with regard to legal costs;
• It can be applied jointly.

Some people are not in favour of the changes and advocate that no fault divorce is bad.  Some of the disadvantages of no-fault divorce are as follows:

• People believe divorces may now increase because it is said that it will be easier to exit the marriage which undermines the institution of marriage;
• It may be that only one spouse believes the marriage has broken down and the other may desire to remain married however a no-fault divorce may allow the divorce;
• As alluded to above it can be said to devalue the vows of marriage given the vow to love each other until death do us part;
• It will now take at least 6 months for a divorce to be granted.

The process will remain very much similar to the current divorce process.

The initial step is to complete the divorce petition and serve a copy on the Respondent unless it is applied for jointly. Once the petition is complete and accurate, it will be filed with the Court along with a statement of the applicant(s) confirming the marriage has broken down irretrievably. The Court fee for filing the petition is £592.00. The Respondent will file an Acknowledgement of Service to confirm service, again unless applied jointly in which case service will not be necessary.

The petition can no longer be defended therefore the Court will issue a conditional order of divorce (previously the decree nisi) after a minimum of 20 weeks from when the petition was issued providing the applicant(s) confirm they wish to proceed. Following a further period of 6 weeks and 1 day, the petitioner can then apply for the final order of divorce (previously decree absolute).

Applications for no fault-divorces have been available since April 2022

However, this does not prevent you from applying for a divorce under the current process in the meantime. As previously mentioned, you will need to show that your marriage has broken down due to one of the five reasons listed.

This depends entirely on your circumstances therefore it may be easier to give us a call to discuss this in more detail to allow you to make an informed decision. Of course, should you wish to, you can wait for a no-fault divorce however you should bear in mind that you will be unable to resolve finances until this point also. There may also be a good reasons why you should not wait and it may be more beneficial to proceed now.  This will depend on your particular situation and circumstances. You should also be mindful that the act coming into divorce has been delayed once already so it may well be delayed again.

The simple answer is no.

The Act covers Marriage and Civil Partnerships equally, both of which establish the same principle that there is no longer a requirement to establish a fact to prove the irretrievable breakdown of a marriage.

It also still allows for applications for judicial separation rather than divorce.