Despite the long awaited Act for “no-fault” divorce being passed in June 2020, it finally became legislation on Wednesday 6 April 2022. It has taken years of discussion to reach this point, providing significant changes to the way couples apply for a legal separation.
We’ll cover the following in this all-you-need-to-know guide:
- How will no-fault divorce work?
- Grounds for divorce and the no-fault divorce legislation
- What should couples do?
- What does no-fault divorce mean for your will?
- What does no-fault divorce mean for Asian communities?
- What terminology has changed as part of no-fault divorce?
- What caused the delay?
- How we guide you through the divorce process
This landmark legislation, formally called the Divorce, Dissolution and Separation Act 2020 will allow married couples to divorce without assigning blame. Up until this point, couples had to have been separated for at least two years, or have to blame the other spouse for the breakdown of the marriage, which increases the animosity.
England and Wales have been a step behind many other countries when it comes to divorce with many opting for a more progressive approach. At present, one spouse must issue divorce proceedings against the other, potentially creating unnecessary animosity which can often lead to the divorce being contested by the other spouse.
How will no-fault divorce work?
- Couples will no longer need to agree to be separated for two years or prove fault to file for divorce.
- One party can state that the marriage has irretrievably broken down, and their spouse cannot refuse the application.
- This no-fault divorce will spare couples the emotional stress and strain of finding blame.
- It will also eliminate the need to wait two years to divorce on the grounds of separation or five years without the consent of the other spouse.
- Under the new law, a divorce cannot be concluded in less than 26 weeks, but a fixed timeframe allows parties to reflect on the decision to end the marriage.
- Couples can also apply for divorce jointly, which will lessen the chance of blame creeping into the equation.
- Contesting a divorce will not be possible, which puts an end to traumatic situations.
- The Owens v Owens case is rare, but removing the option to contest a divorce is a vital step forward.
- A statutory timeframe of 20 weeks has been included in the new legislation, but complexities can add significant time to the process, such as financial claims and child custody concerns.
Being able to apply for a no-fault divorce will spare couples the emotional stress and strain of finding blame for an unreasonable behaviour petition or when they can’t, or don’t want to, wait two years to divorce on the grounds of separation or five years if they do not have the consent of the other spouse.
It should be noted that under the new no-fault divorce law, the statutory timeframe means that a divorce cannot be concluded in less than 26 weeks. Although it is possible for this to be shorter under the current law, it is still unusual for it to be less than four months, not including the time taken to resolve financial claims. As a result, the overall timeframe of the new system will be largely in line with the existing one. Plus, a fixed timeframe allows parties to reflect on whether the decision to end the marriage is the right one.
Cases such as Owens v Owens are rare. Removing the option to contest a divorce is a vital step forward, stopping people from being trapped in a marriage that they no longer want to be part of.
A statutory timeframe has been included in the new legislation, meaning that a divorce cannot be finalised in less than 20 weeks. Under current law, it is possible to conclude a divorce in a shorter time frame than this, however, it’s rare for this to happen in less than four months.
It is important to remember though that complexities can arise that can add significant time to the process, such as financial claims that require negotiation, or concerns around child custody.
Grounds for divorce and the no-fault divorce legislation
There is only one legal ground for divorce in the UK: the marriage must have irretrievably broken down. At present, to support a statement of the irretrievable breakdown of a marriage, the person applying for the divorce must prove one of the five facts e.g. adultery, unreasonable behaviour, two years separation or desertion (2 or 5 years).
When the new no-fault divorce law comes into effect, separating couples will no longer have to rely on these five facts – instead, one of the parties to the divorce need only state that their marriage has irretrievably broken down. This represents a shift towards trusting the judgement of those involved in a divorce.
What should couples do?
In the coming months, it is important that couples who have been waiting to separate on a no-fault basis begin plans and discussions.
Open discussions are crucial. While it’s unlikely that the process of choosing to go through a no-fault divorce will be any faster, couples should start talking about when they are going to do it and think about making the application together so there are no surprises or disagreements further down the line.
And while this new legislation is very welcome, but there are still improvements to be made to the divorce process in terms of equality. For example, adultery cannot be cited as grounds for divorce in same-sex marriages, as adultery is only recognised between two people of the opposite sex.
Currently, the accepted ground for divorce in same-sex couples are:
- Unreasonable behaviour
- Two years desertion
- Parties been separated for two (consent required) or five years (no consent required)
Allocating blame is unfair and often results in more conflict. It can also lead to increased legal fees as people look to contest the divorce and the reasons for it.
This long-awaited and important change to the law is welcome news for many couples, there is still a long way to go in improving the process to ensure it is fair for all.
What does no-fault divorce mean for your will?
- Spouses are entitled to inheritance during divorce proceedings
- In the absence of a Will, intestacy rules determine the distribution of assets
- It is important to update or create a new Will during divorce proceedings to ensure assets pass to intended beneficiaries
Whilst a couple remains married, even if in the process of divorcing, spouses are entitled to whatever inheritance may have been granted to them in their existing Will. If there is no Will then, in accordance with the intestacy rules, partners will be entitled to either all or the majority of the estate depending on its value.
With matters being dealt with more amicably, it may slip your mind the need to disinherit your soon-to-be ex-spouse. It is important to update your Will or put a new Will in place when contemplating or going through a divorce to ensure that assets pass to the right people if you were to die before the divorce is finalised. The last thing that most parties want in these circumstances is for their soon-to-be ex-spouse to inherit their assets.
If we assist you with your divorce, we will always ensure that you have considered the provisions in your existing Will. Additionally, our private client team are there on hand to assist you in making adequate provisions for your wider family and friends should your marriage come to an end.
What does no-fault divorce mean for Asian communities?
- Cultural differences in Asian marriages may lead to a desire to end the marriage, but under current law, this does not count as a reason for divorce and may require an accusation of unreasonable behavior.
- Accusations of unreasonable behavior can exacerbate an already stressful situation, particularly in Asian cultures where there is often a high level of blame to begin with.
- The new no-fault divorce law will remove the need for blame, and one will only need to state that the relationship has broken down irretrievably.
- This eliminates the need to make accusations of adultery or unreasonable behavior, which could cause further reputational damage in some Asian communities.
What terminology has changed as part of no-fault divorce?
Divorce terminology is also changing too, bringing the process into the 21st century. Making each element of divorce as clear as possible will reduce confusion and help people to understand the process they’re embarking on a little easier.
|Decree Nisi||Conditional Order||The order by a court of law stating the date on which the marriage will end|
|Decree Absolute||Final Order||The legal document that ends a marriage|
|(Judicial) Separation Decree||(Judicial) Separation Order||An order which confirms the parties to a marriage or civil partnership are separated|
|Decree of Nullity||Nullity of marriage order||A declaration of the court that the marriage is null and void|
What caused the delay?
Following the tireless campaigning of family lawyers, the government has spent a significant amount of time over the past few years trying to make the divorce process simpler.
The Divorce, Dissolution and Separation Act receiving Royal Assent was a real breakthrough moment, with many hoping no-fault divorce would come into play by early 2021 at the latest. However, following delays, the act has now come into force on 6 April 2022. This was to allow time to become familiar with the new process, and for any necessary, IT changes to be made to HMCTS’s online divorce systems so that new process works as intended and is fit for purpose.
No-fault divorces will take a huge amount of anxiety away from the process, benefitting a significant number of people.
How we guide you through the divorce process
The introduction of no-fault divorce is one of the most significant changes in family law in the last 50 years. Ending a marriage is a monumental decision, and that won’t change. It’s important to remember that the actions you take in the early stages can set the tone for everything that follows.
If you’re about to start divorce proceedings, or currently going through the separation process, then speak to one of our divorce lawyers. We’re here to guide you through the maze of emotions and legal responsibilities, every step of the way.
You can also read our step by step guide on how to get a divorce. Find out more here >>.
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