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no fault divorce everything you need to know about the recent law change

No Fault Divorce - everything you need to know following the recent law change

Kiran Reyat, our head of Family Law, tackles some key questions around this recent update in the divorce process and offers that this option could really help couples navigate divorce without being at risk of causing further animosity or defaulting to the option of ‘unreasonable behaviour’.

Common concerns that many family lawyers would hear prior to April 2022 centred around the need to provide detailed reasons as to why a couple were looking to divorce. Having to choose a reason that suitably fitted within the 5 grounds for divorce (below) often led to increased animosity between a couple when quite often they were looking to amicably separate and the focus for the divorce was just to make financial arrangements. It was clear then that there needed to be a shift in the law that would help couples avoid the added pressure of placing ‘blame’ in the paperwork for divorce proceedings to be issued. 

So, what is a No Fault Divorce? 

Under the Divorce, Dissolution and Separation Act 2020, we saw that the divorce (or dissolution) process in England and Wales significantly change on 6th April 2022 with the ‘no fault’ divorce procedure becoming effective. Prior to 6th April 2022, you had to rely upon one of the following five grounds to issue divorce proceedings: 

• adultery 

• unreasonable behaviour 

• living apart for more than 2 years (with agreement) 

• living apart for more than 5 years (without agreement) 

• desertion 

Generally speaking the most common ground that parties would rely upon would be ‘unreasonable behaviour’. 

Since April 6th 2022, under the Divorce, Dissolution and Separation Act 2020, a person no longer needs to meet one of the above five grounds and simply needs to apply on the sole ground that the marriage (or civil partnership) has broken down irretrievably. You are essentially confirming to the Court that you believe there is no reasonable possibility that you will be able to resolve your issues and that your marriage (or civil partnership) has broken down beyond repair. 

How does a couple get a No Fault Divorce? 

A joint application can be made or a husband or wife can apply on their own by completing a sole application. 

If you are considering a joint application you need to both agree that you should divorce and that neither party is at risk of domestic abuse. You will both need to agree that you will either apply online or via the post as the method used needs to be the same for a joint application. Both of you will need to confirm that you want to continue with the divorce application at each stage of the process. It is worth noting that if either party stops responding that the husband or wife can proceed with divorce application as a sole applicant. 

If you are making a sole application, your husband or wife does not have to agree that you should get a divorce. There are limited grounds to which a husband or wife may rely upon to defend a divorce which is: 

a. On the basis of jurisdiction. 

b. Validity of the marriage. 

c. Disputes over whether the marriage has legally ended (usually due to divorce proceedings taking place overseas). 

The Court processing time will not differ whether you are making a joint or sole application. It is estimated that it will take at least 6 months to get divorced taking into account each stage. A more detailed breakdown of the timescales can be found on our website’s divorce page. 

How do you think the introduction of the No Fault Divorce will change the way couples navigate divorce? 

Theoretically, the process should be less stressful as it: 

• Replaces the ‘five grounds’ and allows couples to divorce without assigning fault 

• Removes the possibility of contesting the divorce with only limited rounds available to dispute/defend the divorce. 

• Introduces an option for a joint application 

• Involves less complex language used for example, changing ‘decree nisi’ to ‘conditional order’ and ‘decree absolute’ to ‘final order’. 

These changes also apply to the dissolution of civil partnerships. 

The divorce process is extremely stressful so it was easy for people to get caught up in assigning blame. On practical terms, the new process ensures that the focus is on the financial settlement and any child arrangements rather than having to ‘assign any blame/ fault’ on one party to satisfy the grounds to even apply for a divorce. 

Does the No Fault Divorce ruling make it easier to get divorced? Do you think we’ll see more Divorces as a result? 

Arguably, the process is simpler as there is no obligation to consider the emotional aspect of assigning blame to satisfy one of the five grounds previously required. 

However, I think more people will proceed with applying for a divorce without seeking independent legal advice which may place them at risk of not fully understanding their legal rights in regards to financial settlements. It is quite common that when there are not substantial assets in the matrimonial pot that people will think they do not need to obtain any legal advice. There is a risk that a financial claim can be made after parties divorce if there is not financial order in place. 

Do both parties have to agree to a No Fault Divorce? 

If you cannot reach an agreement to make a joint application then a party has the opportunity to make a sole application if: 

• Your husband or wife does not agree you should get a divorce 

• You have concerns that your husband or wife will not engage with the Court process. 

Do you think there will be positive mental health repercussions on a couple as a result of the introduction of the No Fault Divorce? 

I believe the ending of a marriage or civil partnership can be very stressful even when it is amicable. The removal of the having to evidence ‘fault or blame’ on one person is a positive step in my opinion as on a practical aspect over the years, I have noticed that many of my previous clients found the initial stage to implement proceedings more stressful as they felt that their husband or wife would not agree to a divorce ‘certain things were mentioned or phrased in a particular way’. As a family lawyer, it was a balance between having enough information cited to meet the grounds but try to not cause any avoidable friction between the parties. 

The ‘no -fault-divorce’ will make the initial stage simpler for a husband and wife and will not place any further undue stress. 

Do you see any complications arising as a result of the introduction of the No Fault Divorce? 

The only complications that are likely to arise if where couples proceed on the basis of a no fault divorce and do not seek any legal advice in respect of a financial settlement. For example, there will be tax implications and other legal rights that will need to be considered prior to the finalising of the divorce. 

What do you think the main benefit of a No Fault Divorce is? 

The main benefit that I foresee for a husband and wife is that they no longer need to assign any blame as to why either is applying for a divorce.

Does a No Fault Divorce alter what either party is entitled to as part of the settlement? 

The law has not changed in respect of financial settlements and the requirement to issue separate proceedings.

About the Author
Kiran Reyat, Senior Associate, Head of Family Law

Specialises in: Family Law

If you are part of a couple thinking of proceeding to divorce and need more advice and legal representation, do call our friendly and focused Family Law team. They’ll know just how to support you during this time. You can contact Kiran Reyat in the Family Law department at Comptons Solicitors LLP. ( / 020 3869 4466).