No-fault divorce is the new law that allows couples to get divorce without one person needing to blame the other.
It came into effect in England and Wales on 6 April 2022 when the Divorce, Dissolution and Separation Act 2020 came into force. This is the most significant change to divorce law since 1969. The changes equally apply to the dissolution of civil partnerships.
Divorce: A history
Under the old provisions as set out in the Matrimonial Causes Act 1873, in order to obtain a divorce it was necessary for the party applying for a divorce to attribute blame for the breakdown of the marriage. This required providing one of the five facts, the first three of which were fault based and two based on a period of separation:
- Adultery
- Unreasonable behaviour
- Desertion
- Two year separation
- Five year separation
For many, this meant that one of the parties was forced into making fault allegations not necessarily because that was the real cause of the breakdown but mostly because the alternative was to wait for at least two years for a divorce with consent, or five where there was no consent. Of course, without a divorce being finalised they could not get a final financial order or pension sharing order so waiting was impractical and for most unaffordable.
The old provisions were also outdated in that the legal definition of adultery meant it could not be committed by two people of the same sex meaning under the circumstances the parties would have to apply for divorce under unreasonable behaviour rather than adultery.
Divorce: A new beginning
The new law applies to all divorce applications issued on or after 6th April 2022. Under section 1 of the new Act, one or both parties to a marriage can now apply for a divorce by simply stating that the marriage has broken down irretrievably and this does not have to proved. It is no longer necessary to rely on fault or separation and the court will not require evidence of the irretrievable breakdown of the marriage.
The divorce process
The application for divorce can now be made jointly. If a joint application is made, both parties will be equally responsible for the application and can agree between themselves how to pay the court fee for the application.
The divorce application can be made online (or on paper if you are a litigant in person). To initiate the application for a divorce, the parties must have been married for at least a year.
Terminology
The new law has also made changes to the terminology used in divorce proceeding.
- A divorce petition is now an ‘application’
- A Petitioner is now an ‘Applicant’
- The Decree Nisi is now a ‘Conditional Order’
- A Decree Absolute is now a ‘Final Order’.
Cooling off period
Another change introduced b the new law is a 20-week cooling off period. An applicant in divorce proceedings cannot apply for the first stage in the process (the conditional order) until a minimum of 20 weeks have passed since the application for divorce was issued.
The purpose of the 20 week period to give the parties a period of time to reflect on their decision and try to resolve any arrangements regarding the children and finances. The Final Order, previously known as the Decree Absolute, can be applied for 6-weeks after the granting of the Conditional Order.
A welcome change?
For many this indeed is a welcome change. Over the years the law was heavily criticised for being outdated and unnecessarily igniting conflict between couples. This is not always an accurate reflection of the reality of marriages in which couples naturally drift apart or decide to embark on different pathways in life.
For those married couples who have endured a conflicted marriage, a ‘blame game’ is the last thing they need to step away and start all over. If one party wants a divorce why should they be forced to air their dirty laundry in public?
Domestic Abuse campaigners have welcomed this change as a liberation for victims of domestic abuse trying to leave an abusive relationship. Under the old provisions, a contested divorce was a form of control used by many abusers to continue to coerce and control their spouse.
It is hoped that with these changes, parties will be able to focus on their children and finances and move on. If a marriage breaks down it could be for many reasons – it simply could be an experience that didn’t work out and people change and grow out of love. People no longer have to be shackled by the chains of marriage and the new changes aim to make it possible to have a simplified exit strategy that allows you to maintain your reasons and marriage experience private.
