Divorce law is changing in April 2022: No fault divorce explained

The introduction of no fault divorce on 06 April will remove the legal requirement to apportion blame against one of the partners in order to end the marriage or civil partnership quickly.

Under the law as it currently stands, there is only one ‘ground’ for divorce; the ground being that the marriage has irretrievably broken down. However, to show that the marriage has irretrievably broken down, it is necessary to rely on one of the following five different ‘facts’:

1. That the other person has committed adultery;
2. That the other person has behaved unreasonably;
3. Desertion by the other person for 2 years or more;
4. That you have lived separate and apart for 2 years and both consent to the divorce; or
5. That you have lived separate and apart for 5 years (when the other person’s consent is not required).

Why is the divorce law changing?

The changes follow many years of campaigning by those who felt the current laws were outdated and no longer fit for purpose.

For almost 50 years, it has been necessary to ascribe fault or blame, or to remain ‘trapped’ in the marriage for 2 years or more. For many people who are simply unhappy in their marriages or civil partnerships, this has been unacceptable.

Adultery and unreasonable behaviour tend to be the most commonly relied upon facts, as most couples either don’t want to or can’t wait for 2 years or more. Hence, couples have had little option but to apportion blame, which can in itself create additional problems and conflict going against the grain of trying to reduce animosity and resolve matters as amicably as possible.

Due to a technicality on the legal definition of adultery (that it is an act between a man and a woman), same-sex divorcees have also been excluded from being able to use it as a grounds for divorce.

The introduction of no fault divorce has been a long time coming, but the expectation is that it will remove a great deal of unnecessary friction, avoid the need to ‘mud sling’ and allow people to divorce with greater dignity.

What is no fault divorce?

A no fault divorce is a divorce in which the dissolution of a marriage or civil partnership does not apportion blame to either spouse. This will apply to all divorces and dissolutions in England and Wales.

From 06 April 2022, couples will no longer have to rely on one of the five facts (as listed above) to show that their marriage has irretrievably broken down. Instead, there will be a new requirement to provide a statement of irretrievable breakdown.

Another change is that, for the first time, joint applications for divorce will be possible. This further reduces the perceived concept of blame, so there will no longer be someone regarded as the ‘guilty’ party during the process.

Sole applications will still be possible if, for instance, one party wants a divorce and the other does not.

Under the current law, though rarely exercised, it is possible to contest or ‘defend’ divorce proceedings. The option to do this will also be removed under the new law.

Other changes include a move away from outdated terminology, adopting plainer English.

Decree Nisi’s and Decree Absolute’s will be no more. Instead, there will be Conditional and Final Orders.

What effect will no fault divorce have?

The divorce process itself should become more straightforward and more amicable.  Of note though, is that the divorce under the new law is likely to take longer than under the current law.

Since the introduction of the online divorce system, straightforward divorces have been processed very efficiently and are typically being completed in approximately 3 to 4 months.

The new law will also rely upon the online system, however, a divorce will likely take in the region of 6 months from start to conclusion. This is because under the new law there will be a new minimum period of 20 weeks from the start of the process until the Conditional Order can be made. The idea behind this is to allow a period of reflection for both parties to consider whether they really to want to divorce.

As under the current law, there will then be a wait of 6 weeks and 1 day between the Conditional Order and being able to apply for the Final Order.

Should you divorce now or wait for no fault divorce?

This is very much a personal decision and will depend upon your individual circumstances and objectives.

April 2022 is not too far away.

If your marriage or civil partnership has suffered from adultery or unreasonable behaviour, you will be able to proceed now, as long as you are happy to declare the fault. However, this carries a risk of increased animosity and conflict during the process.

If you are considering divorce now, though anticipate the need to blame will cause friction, waiting a short time may be beneficial in the long run. However, if there is a pressing need to address financial matters sooner rather than later (such as for capital gains tax reasons), it may be preferable to start the divorce now.

As mentioned above, the new procedures attached to the no fault divorce are likely to cause your divorce to take longer, although it may be a less stressful process if you wait.

This is an area where it would be worthwhile seeking tailored legal advice about your own particular circumstances with careful consideration about the pros and cons of each option.