No-Fault Divorce - What does this mean?

No-Fault Divorce – What does this mean?

On 6 April 2022 the law is finally changing in relation to Divorce. This change is welcomed by family lawyers and practitioners as it sees an end to the divorce “blame game” and finally allows married couples to divorce without having to blame their spouse for the breakdown of their marriage. Here, Brigid O’Malley explains what the new reform means and what changes to expect.

Currently, the law which dates back to 1973 (under the Matrimonial Causes Act 1973), requires the Petitioner of divorce to prove their marriage has broken down based upon one of five facts, which are:-

  1. Adultery
  2. Behaviour
  3. 2 years separation, with their spouse’s consent
  4. 5 years separation
  5. Desertion

Therefore, currently if you want to issue divorce proceedings before a period of two years has passed you must issue on the basis that your marriage has broken down either because your spouse had committed adultery or because of their behaviour. You would have to be able to evidence your spouse’s adultery or they would have to admit to it which many people feel uncomfortable or unhappy about doing. For behaviour, you have to provide a statement setting out the reasons why your spouse’s behaviour caused the breakdown of your marriage. In short, you have to blame them for the breakdown of the marriage.  This sadly then can lead to bitterness between the parties and ill feeling before they have even begun to discuss and resolve arrangements for the children of the marriage or the financial matters.

So what changes; what does no fault divorce mean?

In short, it means that you can now issue divorce proceedings without having to blame your spouse. Instead, you will issue divorce proceedings by providing a simple statement that the marriage has irretrievably broken down. No evidence will be required in addition to this statement of irretrievable breakdown.

This will hopefully reduce the negative impact and hostility that protracted divorce proceedings can have on families and in particular, their children.

The changes also allow, for the first time in the Courts of England and Wales, the ability to issue divorce proceedings jointly with your spouse. This truly is reform to the law and will hopefully see far more separating couples coming together in a respectful manner to formally end their marriage. However, it may not always be appropriate to apply jointly but we can advise you further about your options.

The law has also changed to prevent the respondent (the spouse of the applicant for divorce) from disputing whether the marriage has broken down. This means a respondent can no longer defend the divorce save for very limited circumstances which are:-

  1. They dispute that the Court of England and Wales has jurisdiction to conduct the proceedings
  2. They dispute the validity of the marriage or civil partnership itself
  3. The marriage or civil partnership has already come to a legal end

Again, this reform is most welcomed as previously there was concern that perpetrators of domestic abuse, for example, were able to use their ability to defend divorce proceedings to continue their control over their spouse. This is now not possible.

Overall, the reform to the law feels very positive and will hopefully allow more couples to divorce amicably and respectfully. It will certainly remove the initial tension and hostility that can arise from the current requirement to blame your spouse in a divorce petition. It will hopefully also help children whose parents are separating as it will remove the damaging belief that one of their parents has been the sole cause of the marriage breaking down. Hopefully, parents will be able to work together more collaboratively to resolve all the issues that arise when couples separate; reducing the potential negative effects separation brings upon children.

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