No-fault divorce: what does it mean for separating couples?

The Divorce, Dissolution and Separation Bill, which passed into law on 25 June 2020, will introduce a ‘no-fault’ divorce system in England and Wales for the first time, meaning that couples will be able to apply for divorce jointly without either person being held at fault.

What is a no-fault divorce?

Currently, the laws in the UK state that for couples to start divorce proceedings, there must be some element of fault, blame or wrongdoing by either party, unless the couple has been separated for more than two years. Furthermore, the reason for blame must fall into the category of either adultery or unreasonable behaviour.

A no-fault divorce is a divorce in which the dissolution of a marriage does not apportion blame to either spouse.

The so-called ‘blame game’ at such an early stage of divorce proceedings can often increase legal fees and animosity for divorcing couples, making later discussions regarding their children and financial affairs more difficult and is why Resolution members have been campaigning for over 30 years for no-fault divorce to be introduced.

When will no-fault divorce be introduced?

Even though the proposed legislation removing fault from the divorce process has reached Parliament, couples seeking a no-fault divorce will, in all likelihood, have to wait until Autumn 2021.

What will change with a no-fault divorce?

The most important change will be the removal of blame from the process, meaning that couples will be able to apply for a divorce without either of them being held at fault. This will, no doubt, make it much easier for couples to resolve issues as amicably as possible and minimise the impact on any children involved.

Another key change of the reform is that couples will be able to make a joint application for a divorce or dissolution. Under the current system of fault-based divorce, one spouse needs to issue the divorce proceedings against the other.

New timescales have also been introduced meaning that couples will have to wait a minimum of six months between the application and divorce becoming final. This ‘period of reflection’ has been introduced to counter concerns that the reforms will make it too easy for couples to proceed with a divorce rather than trying to save their marriage.

With the no-fault divorce system in place, couples will no longer need to worry about their spouse contesting the divorce or forcing them to go to court. This will inevitably save considerable time, cost and stress.

Should I wait for a no-fault divorce?

Blaming the divorce on one spouse can seem unfair for some couples, but this will not affect the outcome of the divorce, financial settlements or children’s arrangements.  If you are ready to divorce now, it may be beneficial to proceed, rather than wait for a no-fault divorce.

However, there are some circumstances which might lead you to wait for a no-fault divorce. For example, if your spouse has told you that they will defend the divorce. Once the no-fault divorce system is introduced, your spouse will not be able to defend the divorce, thereby reducing the stress and expense of court proceedings.

Another reason to wait is if your spouse refuses to divorce you and you are struggling to ‘blame’ them. Currently, you would have to wait at least five years to start divorce proceedings without your spouse’s consent, so with the expected reforms due to come into force in late 2021, waiting for a no-fault divorce may be easier.

If you are unsure about whether to apply for a divorce or dissolution now or wait for a no-fault divorce, we can discuss this with you. We recommend that you seek legal advice that is tailored to your circumstances as no two divorces are the same.