No-Fault Divorce, two months on - what has changed?

On 6 April 2022, the Divorce, Dissolution and Separation Act 2020 came into force. The new legislation ushers in the concept of the ‘No-Fault divorce’ which means that the courts can now grant a divorce without assigning or subscribing blame to either party. In order to understand the extent and effect of this significant development it is necessary to examine the law of divorce prior to April of this year.

Divorce law before April 2022

Prior to April of this year, the law relating to divorce was governed by the terms of the Matrimonial Causes Act 1973. Under the ‘old law’, a party to a marriage who was seeking the divorce (“the petitioner”) had to prove to the Court that the marriage had broken down irretrievably. This break down had to be evidenced by any one of five ‘facts’:

• Adultery – the respondent (the other spouse) had committed adultery with a member of the opposite sex.
• Desertion – the respondent has deserted the petitioner for a continuous period of at least two years.
• Unreasonable behaviour – such as violence or mental abuse, refusal to contribute to the home or persistent drink or drug issues.
• 2 years separation with consent – the parties have been separated for a continuous period of not less than 2 years and the respondent consents to the divorce.
• 5 years separation without consent - the parties have been separated for a continuous period of not less than 2 years in which case, the respondent’s consent is not required.

Anyone wishing to divorce their spouse had to provide the court with evidence to support one of these five facts. Furthermore, a minimum period of 26 weeks had to elapse between the start of the divorce proceedings and the final grant of the divorce order. The purpose of this mandatory waiting period was to allow for the possibility of ‘cooling off’ and reconciliation.

So, what has changed?

The new legislation is the culmination of years of campaigning and lobbying by family lawyers and has changed divorce law significantly. Hence, ‘no fault divorce’.

First of all, a married person who wants a divorce no longer has to pin any blame on the other spouse. No accusations of unreasonable behaviour, adultery or desertion are now required. But the corollary to this is that an application for divorce can no longer be opposed by the other spouse.

Secondly, a married couple can now make a joint application for a divorce order. This was something that was not possible under the old legislation, even if the parties agreed upon the divorce.

Thirdly, there are changes to terminology. The parties are no longer known as petitioner and respondent but, rather, applicant 1 and applicant 2. The divorce proceedings will no longer be started by a petition but rather by an application. A Decree Nisi will, henceforth, be referred to as a ‘Conditional Order’ and the Decree Absolute as the ‘Final Order’.

Crucially, the waiting, or cooling off, period has not been reduced. From the issuing of a divorce application, the applicant must wait a minimum of 20 weeks until he or she can apply for a Conditional Order. Once the Conditional Order has been granted, the applicant must then wait another 6 weeks plus 1 day before applying for the Final Order.

It seems that framers of the new legislation felt it important to provide this mandatory “breathing space” to allow for the possibility of reconciliation.

It is also worth noting that new divorce law will have no effect when it comes to proceedings in relation to either financial arrangements or arrangements with respect to children of the family.

Interestingly, HM Courts and Tribunals Service reported receiving no less than 3,000 divorce applications in the first week after the legislation came into effect on 6 April 2022. This represents a 50% increase on the average number of roughly 2,000 applications per week.

It appears, therefore, that a large number of divorcing couples were holding back, or being advised to hold back, pending the introduction of the new no-fault procedure. It may be, however, that this spike in cases was short-lived and does not represent a long-term upward trend in broken marriages.

Opinions for and against

The new divorce regime is not free of controversy nor is it free of critics. As is often the case in such matters, both supporters and detractors make some good points.

Supporters of no-fault divorce, including the many family lawyers who have lobbied for it, claim that the previous requirement to prove some reprehensible behaviour on the part of the other spouse made the divorce process far more stressful, costly and acrimonious than it needed to be. Their position is that divorce is stressful enough as it is, especially if there are children, without having to make the applicant prove, for example, unreasonable behaviour on the part of their spouse. They also claim that it will not lead to more broken marriages.

Critics, on the other hand, argue that no-fault divorce makes a mockery of the institution of marriage and renders the marriage contract worthless. A marriage contract, which is supposed to last a lifetime but can be ripped up the day after the wedding and for no reason, is not and never will be respected in the way that a marriage should be. This has wider implications for society.

Both arguments have some merit but, whatever your views, it is clear that no-fault divorce, for good or ill, is here to stay.

For further information and trusted legal advice regarding matters of No Fault Divorce in the UK, get in touch with our Resolution-accredited No Fault divorce lawyers in London at Carlsons Solicitors.