The No Fault Divorce – Why the need for change?

Ministers have announced that the Divorce, Dissolution and Separation Act 2020 will come into force on the 6^th April 2022.

Each year over 10,000 people get divorced in England and Wales under current law which is over 50 years old.

What are the 5 Grounds for Divorce?

At present, the Court will not recognise a marriage to have broken down irretrievably unless the Petitioner satisfies the Court that one of 5 facts applies:

• Adultery
• Behaviour
• Desertion
• Separated for 2 years (with consent)
• Separated for 5 years

Unless the parties separate for a period of 5 years or they have been separated for 2 years and agree to proceed on that basis, one must “blame” the other for the breakdown of the marriage.

That blame takes the form of a Divorce Petition based either on adultery or unreasonable behaviour, evidence of which must be given to the Court.

In short, this does not always encourage co-operation but instead can escalate conflict, making it difficult for a couple to reach amicable arrangements when it comes to children and finances.

What is No Fault Divorce?

Under the new no fault Divorce, one or both parties can apply for a Divorce on the basis that the marriage has broken down irretrievably, without having to use one of the 5 facts.

Instead, the applicant or applicants will provide a statement as to the circumstances under which the marriage has broken down. The Court must take the statement to be conclusive evidence, which may encourage parties to settle matters outside of Court. 

After an Application for Divorce, Dissolution or Separation is made, the Court cannot make a Conditional Order, currently known as a Decree Nisi, until a period of 20 weeks has passed, allowing time for the Court to process paperwork and for  both parties to reflect upon the application.

A Divorce, Dissolution or Separation Order is conditional in the first instance and may not be made final until a period of 6 weeks from the date of the Conditional Order has elapsed.

It is hoped that the Divorce, Dissolution and Separation Act 2020 will usher in a more amicable approach to Divorce, reducing both the administrative burden on the Family Courts and conflict between separating couples where finances and children are involved.

Next Steps

Patrick Mulcare is Head of Family Law at Spratt Endicott Solicitors. To discuss this article please email pmulcare@se-solicitors.co.uk

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.