No Fault Divorce

The long awaited Act of ‘no fault’ divorce was passed in June 2020.  It is now due to become law on 6 April 2022.

Under current legislation parties can only apply for a divorce if they provide to the court that their marriage has irretrievably broken down and that one of the 5 facts (adultery, unreasonable behaviour, 2 years separation with consent, 5 years separation, desertion) are relevant to their marriage breakdown.  Under the new legislation the fault element will be removed.

 

No need for blame

Under the new legislation couples can divorce without having to cite blame.  They will no longer need to rely on one of the 5 facts.

 

The application cannot be contested

As the element of fault will be removed the divorce application cannot be contested.  It is hoped that couples will be able to pursue an amicable and cost-effective divorce without the fear of their application being contested.

 

An option for a joint application

Currently only one spouse can apply for the divorce.  The new system will allow both parties to apply on a joint and amicable basis.

 

Removal of legal jargon

Changes will be made to the language used.  ‘Decree Nisi’ will be changed to ‘Conditional Order’.  The final stage of the divorce is currently referred to as ‘Decree Absolute’.  This will be referred to as ‘Final Order’.

 

The Government’s Divorce, Dissolution and Separation Act 2020 will reform the divorce process to remove the concept of fault.  The Act was passed in June 2020 and the Government is working on implementation of the changes.  The new legislation will:

• Replace the ‘five facts’ with a new requirement to provide a statement of irretrievable breakdown.
• Remove the possibility of contesting the divorce.
• Introduce an option for a joint application.
• Make sure language is in plain English for example changing ‘Decree Nisi’ to ‘Conditional Order’ and ‘Decree Absolute’ to ‘Final Order’.

 

Our View

No fault divorce will reduce conflict allowing couples to focus on important issues like children, property and finances.

 

We also support

• Joint petitions.
• The principle of a divorce based on the statement of irretrievable breakdown of marriage.

 

We believe the legislation could be clearer, fairer and more accessible by reviewing:

• The notice period – it should start when a partner received their spouse’s divorce application (date of service) rather than from the start of proceedings (when one spouse applies for divorce).
• Financial proceedings – if financial proceedings (Form A) have started, no final order should be granted until a financial order has been made if either party might suffer financial prejudice by a final decree before the final financial settlement.
• Court fee costs – the new online divorce system will cut administration costs for the courts, so this should be reflected in the application fee.
• The period of reflection – there should be a 3-month reflection period at the beginning of the divorce proceedings to allow separating couples time to consider their situation and get the legal advice they need. Domestic violence applications or applications that relate to children in a divorce should be available during the reflection period.

 

The Government should also reintroduce legal aid for early advice to support divorcing couples and help them understand their financial responsibilities and the needs of their children.

We believe the current court fee of £593 for divorce applications is too high and discriminates against those less able to afford it.  Court fees should be reduced to reflect the fact that the new process will require less administration.

What this means for Solicitors

The proposed changes should simplify current practices and reduce conflict between couples.  We expect any changes to the process will be fairly easy for solicitors to implement.