The New "No-Fault" Divorce Explained

Each year around 100,000 couples in the UK get divorced. Often, the process to reach their final separation has been a long and painful one, especially if there are children affected too. The process itself can make the act of separation even more distressing for everyone involved and, for many years, there have been attempts made to simplify it.

After many decades of effort to get a change in the law, it finally comes into effect on April 6, 2022. The new method has been given the informal title of the “no-fault divorce” and has been brought into law by The Divorce, Dissolution and Separation Act, 2020. From this date, the grounds for divorce will be greatly simplified. It will also remove the ability of either partner to contest a divorce - often the cause of great distress, not to mention expense, as it inevitably leads to going to court.

But, before we look into the specifics of the no-fault divorce, it’s worth outlining the legal process of divorce that existed prior to the introduction of the new law.

The five old reasons for divorce

Since 1973 there have been five facts that have played a part in divorces being granted. These will no longer apply under the new ruling.

Adultery

If either partner in a marriage commits adultery with a person of the opposite sex the innocent party could petition for divorce within six months of discovering that it has taken place.

Desertion

If one partner leaves the matrimonial home for at least two years without the agreement of the other.

Unreasonable Behaviour

This is the most commonly cited reason for seeking a divorce. It covers any kind of behaviour that the partner seeking the divorce finds impossible to live with. It can range from violence or coercive control through to spending excessive time out of the family home. Again, examples that are cited as evidence need to have occurred within the last six months.

Separation of two years with consent

This is often the reason given when both partners agree to the divorce. To qualify, both must to have led separate lives for at least two years before the application is made. Even if the couple are living in the same house, it’s still possible to use this as a reason.

Five years’ separation

If the separation has lasted for five years or more either partner can choose to divorce the other. Just like two years’ separation, the court will need to be convinced that both partners have been apart and lived independent lives for the full five years.

While having these five reasons meant that direct facts could be used in a divorce, they also had the effect of sometimes making it a combative situation. In some cases, it meant that one person had to prove that the other had behaved in a certain way which led to conflict and generally made the process more complex and upsetting than it needed to be.

It also meant that, unless they were prepared to wait for at least two years after deciding to divorce, one partner would need to take the blame, whether for committing adultery, desertion or unreasonable behaviour. So there was no provision for couples who simply decided that they no longer wanted to be married or in a civil partnership.

Many family lawyers have reported in the past that they have seen cases when partners wanting to divorce for this reason, but who have been unwilling to wait, have had to make the difficult decision of who will take the blame.

The new law in detail

It is to avoid situations like this arising that has been one of the driving factors behind the new Divorce, Dissolution and Separation Act, along with other reasons that all aim to make divorcing a simpler process.

Now, just one partner has to declare that they want to divorce the other. There is no need to prove adultery, unreasonable behaviour, desertion or separation. Equally, the right to contest a divorce has also been removed as an option.

What does remain is the need to state that the relationship has broken down irretrievably – but there is no need to demonstrate anything to prove this. Instead, it is a simple process of applying to the court to instigate divorce proceedings. For the first time ever, this can now be done as a joint application – although single applications are also possible where the other partner doesn’t agree to the divorce.

Because the process is far simpler than before, there has also been an extra time period that has been introduced. So, from the initial start of divorce proceedings, nothing else can happen for at least 20 weeks.

This is to give both parties time to reflect on the decision and to perhaps reconsider whether they really do want to divorce. It also provides time to arrange all the practicalities of the divorce such as division of assets and agree living arrangements or access rights to see any children who will be affected.

There has also been a move to remove some of the legal jargon that has been associated with divorce in the past. The point in the proceedings that was previously known as the Divorce Nisi is now called the Conditional Order. The finalising of the divorce, once called the Divorce Absolute, is now the Final Order, something that can only take place at least six weeks after the Conditional Order. The other significant word change is that the person bringing the divorce becomes the Applicant instead of the Petitioner.

In all, the new divorce proceedings are designed to take a minimum of six months to complete, a length of time considered to be long enough to make all the necessary arrangements.

Division of assets and property under the new law

Another benefit that it’s hoped the no-blame divorce will bring about is making the division of assets more straightforward. By reducing the likelihood of conflict, there’s a good chance that agreements will still be made more easily.

Obviously, there are going to be circumstances where this isn’t the case. In these situations it may become necessary for the court to make a judgment known as a financial order. As before, it’s vital that both parties declare all of their assets to ensure a fair division. And, where there is a family home, one of these options is likely to apply:

• The property is sold, and any money raised is divided between the two partners.
• One person stays in the property and buys the other’s share.
• One person stays in the property on the agreement that it will be sold at some time in the future and the money will be divided as agreed.
• The value of the property is transferred into one person’s name, who stays in the property. The other gets to hold on to other assets of a similar value.
• Part of the value of the property is transferred into one person’s name, who continues to live in the property. The other maintains an interest in the property and will receive money when it’s eventually sold.

Children and divorce

Something that is also remaining the same under the new divorce law is the legal treatment of children. Like before, this is covered by a piece of legislation called The Children Act 1989.

Within this it outlines the responsibilities of parents and a divorcing couple has to provide a Statement of Arrangements. This outlines how these responsibilities will be met after the separation.

These include elements like where the children will live, when each parent will look after them, where they’ll go to school and even where they will spend their holidays.

In an ideal world, all of these can be amicably agreed. If this isn’t possible, there are other options that can avoid the need to go to court.

Round Table meetings

In these, both partners and their solicitors get together in one room to try to come to an agreement, often with the solicitors withdrawing to a second room to confer.

Mediation

This involves working as a couple with a trained and neutral mediator who tries to reach some common ground on which both partners can agree. Once agreement has been reached it can then be handed over to a solicitor to formalise it.

Going to court

Generally, a court will want to see proof that there has been a real effort to resolve disagreements by either of these methods before it tries to resolve the issues involved.

If all else fails, then it will be necessary to go to court in order to draw up a Child Arrangement Order. This is a legally-binding document that sets out all of the details of how a child’s welfare will be assured.

It starts with a “directions” meeting presided over by a judge or magistrate. A representative from the Children and Family Court Advisory and Support Service will also attend.

Ideally, arrangements can be made at this meeting. But if they are not possible then a further, more in-depth, hearing will be held where evidence can be presented and witnesses can be called. There may also be a report produced that expresses the wishes of the child, or children. Using all the evidence and information received, the court will then make a legally-binding Child Arrangement Order.

Again, it’s hoped that the new no-fault system will help to avoid the need for court intervention.

Costs

One aspect that isn’t changing in any way is the standard cost of divorce, namely, the court fee of £550, payable when an application is made.

When there’s agreement about how assets are going to be divided, this can be made legally binding through the use of a Consent Order, costing £50. Where the division has had to be resolved by the court then a Financial Order costs £255.

It’s hoped that by simplifying the process this will also reduce the amount of legal fees payable over and above the ones that need to be paid to the court.

Will it work as intended?

So the question that many people are waiting to have answered is whether the new law will make the intended changes. It’s also thought that many couples intending to divorce have been holding off until the new rules apply.

If this turns out to be true, we should have plenty of examples to examine the effects of the no-fault divorce.

Despite the greater simplicity of divorce, there will undoubtedly be many cases where legal advice is required and, at Eatons, we are well-placed to provide it.

Simply contact your nearest Eatons office. and we will get back to you as soon as possible to discuss the matter in more detail..