No-fault divorce has brought long-awaited reforms into the area of family law which had not changed in the UK since 1973. Read our complete guide to no-fault divorce, how it works, and how it differs from the traditional approaches.
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No-fault divorce removes the previous law’s requirement to establish one or more ‘facts’ to prove the marriage has broken down irretrievably, although it will retain the sole ground of irretrievable breakdown of the relationship. The language of divorce has also been updated and its previous archaic language modernised:
- ‘Decree Nisi’ will be ‘Conditional Order’
- ‘Decree Absolute’ will be ‘Final Order’
- ‘Petitioner’ (the person submitting the divorce application) will be the ‘applicant’.
It also introduces joint applications where both parties can agree that the marriage has broken down irretrievably, although if they cannot agree, applicants can still submit their own application.
There is also a new minimum period of 20 weeks from the beginning of proceedings to the point of the ‘Conditional Order’ . This means that 20 weeks must elapse from when the application is filed with the court before the parties can apply for the Conditional Order. The main purpose for this window is to allow couples a period of ‘meaningful reflection’. If, after that period, the couple still wish to divorce, they must confirm this to the court when they apply for the Final Order.
It will not be made final until a 6-week period between Conditional Order and Final Order has passed. This means that for those divorces with minimal finances or child matters to be resolved, it is possible to become fully divorced in as little as 26 weeks (6 months). Of course, other things can come into the mix, such as court and legal administration, which during busy periods may slow matters.
In exceptional circumstances, it is possible to apply to shorten the above timescales. And those couples with unresolved financial issues may also delay an application for a Final Order until such matters are agreed.
No-fault divorce changes explained
A summary of the key characteristics of no-fault divorce:
- Divorce can be granted without one person blaming the other. This is the most important element of no-fault divorces: the removal of blame. Couples will be able to get a divorce based solely on the fact that the marriage has broken down, without needing to ‘cite’ one of the 5 reasons for divorce that they otherwise would have needed to, including adultery, unreasonable behaviour, desertion, or longer-term separation.
- Couples will be able to apply for a joint divorce. Under the no-fault divorce system, both parties will be able to make the application together.
- There will be a minimum of 20 weeks between making the application and the conditional order. This has been introduced to counter concerns that the no-fault system will make divorce a quicker and easier option for couples rather than trying to save their marriage. It is hoped this built-in delay will encourage couples to reflect and work through their differences before committing to divorce.
- It will no longer be possible to contest a divorce. Historically, under the faults-based system, one person submitted a divorce petition citing particulars of their spouse’s ‘behaviour’ (such as adultery) as the reason for the divorce, who could in turn contest this. Under the no-fault system, this option is removed.
Why no-fault divorce?
Not every marriage that breaks down is as a result of either wrongdoing or fault, as defined by the legislation. Most couples simply become miserable within their relationship through no direct or purposeful action of the other individual, or no fault that is greater on the part of one spouse than the other.
No fault divorces pave the way for a reduction of conflict, stress and other emotional fall-out commonly associated with divorce. It allows the parties to focus on the central issues, including property, and any matrimonial assets, and of course, any children.
What is the process for a no-fault divorce?
The process broadly follows existing divorce practices, and is outlined below:
- One party, or both parties, will give notice that the marriage has broken down irretrievably
- After 20 weeks, the applicant (or couple applicants) who gave notice confirm they wish to proceed with the divorce
- The court can then make a Conditional Order
- Following a further 6 weeks, the court can make the Final Order.
As stated above, in theory it could take 26 weeks, although in practice, this is likely to be quite a bit longer accounting for processing time and administration as well as any negotiations the couple may have regarding how they plan to split.
What are the advantages of no-fault divorce?
- It can reduce conflict in a divorce situation, which is better for families moving forward.
- Domestic abusers will not be able to contest and effectively ‘trap’ a spouse in an unwanted marriage.
- Spouses are not having to apportion blame to the breakdown of their relationship which helps to keep things amicable for an ongoing parenting relationship.
- It better reflects modern society – not having to force one party to blame the other in order to get a divorce.
- It reduces the compulsory wait time for divorce based on the grounds of prolonged separation, and so the couple do not have to wait 2 or 5 years (2 years’ separation when the couple both consent to the divorce, or 5 years’ separation if one party does not consent to the divorce). This allows the couple to move on with their lives faster and minimise conflict.
- Avoids the pretense of having to come up with grounds of behaviour considered unreasonable. Most divorces have historically cited ‘unreasonable behaviour’ as the ground for divorce, and so one spouse or the other would have some of their behaviours documented as the reasons for the couple needing to divorce, even if those behaviours were no worse or no different to the other spouse’s. Instead, both parties can simply agree to file for a divorce together.
Will a no-fault divorce affect the outcome for my finances or my children?
It is rare for the reasons that led to the divorce to have any real impact on decisions about finances or children. And no-fault divorces will not change the way the court views division of marital assets, financial provision, or child arrangements.
Arguably, in some cases it could be even easier to reach agreement about such things because the environment is less confrontational and accusatory.
Although you will still need to resolve arrangements for children and financial matters, you can do this through a variety of routes, including through the court, negotiation, mediation, arbitration, and collaborative law, or a combination.
It will be necessary to have a Conditional Order for divorce before the court can make an order finalising financial arrangements. This applies whether the terms are agreed between the parties or the court imposes a financial order. That order then becomes effective upon the Final Order for divorce being made.
It almost goes without saying, it is as important as ever to finalise financial arrangements in a court order, even where there has been a more informal agreement. Failing to do so will result in any financial claims remaining open, risking a financial claim in the future, even after the divorce itself has finished.
Any child or children of the marriage will continue to be the court’s primary concern when deciding child arrangements.
Will a no-fault divorce be quicker?
A no-fault divorce will not provide a quicker divorce. The process will take roughly the same amount of time as the fault-based system. You will, however, be able to agree between you that there should be a divorce without each blaming the other, which may make a once arduous process seem simpler by comparison. And, of course, raises the possibility of remaining on amicable terms with your ex-spouse which will stand you in good stead when deciding on arrangements for children, or dividing up matrimonial assets.
Will a no-fault divorce cost less?
It makes sense that if a divorce is less protracted, then any associated legal costs will be lower. However, you should also factor in any financial issues that need sorting out, and any disagreements surrounding child arrangements. A no-fault divorce in itself isn’t cheaper, but a more amicable couple are less likely add legal costs through extended negotiation.
As with any divorce, it is almost impossible to determine a total cost because each case is different. However, with a no-blame culture in place, it is hoped more constructive discussions will lead to better and less expensive outcomes. As ever though, it will come down to the personalities of the spouses and the specifics of their case.
When might a no-fault divorce be inadvisable?
Although you might want to separate from your spouse, divorce can have far reaching implications upon which, ideally, you should take legal advice before acting.
If either of you have any international connections, you may want to consider whether to get divorced here or in another country, as this may have an impact on any financial settlement.
What else does the no-fault divorce include?
Besides removing blame or fault in order to form grounds for divorce, no-fault divorces also:
- Removes the opportunity to contest, although there will still be some grounds that will allow an application to be challenged.
- Retains the existing ban on divorce and dissolution applications being made during the first year of marriage.
Extending divorce beyond the grounds of adultery, unreasonable behaviour and desertion but still requiring couples to demonstrate their marriage has irretrievably broken down, it remains unlikely that couples will be able to divorce without proper consideration.
No-fault divorce at a glance
How the differences between fault-based divorce law and a no-fault divorce, compare in simple terms:
One of five ‘facts’ must be proven to demonstrate that the marriage has broken down irretrievably (i.e. ‘unreasonable behaviour’, ‘adultery’, ‘desertion’, ‘2 years separation with consent’, ‘5 years’ separation without consent’). In cases of adultery or unreasonable behaviour it will mean making claims against a spouse and/or producing evidence.
One or both parties produce a statement that the marriage has broken down irretrievably.
No further requirement of proof is necessary.
One spouse applies for the divorce (as Petitioner) against the other spouse, introducing some element of blame.
Either or both spouses may apply for a divorce order.
If the other party (as Respondent) objects to the grounds for divorce or the facts being relied upon by the Petitioner, they can contest the divorce.
Opportunity to contest the divorce is taken out.
A 6-week period between Decree Nisi and Decree Absolute, known as the ‘cooling-off’ period, applies.
This remains the same, although the phraseology has been changed to ‘Conditional Order’ and ‘Final Order’.
The Judge is required to consider whether the facts are sufficient and proven by the Petitioner before approving the divorce petition.
The Court must accept the statement and make a divorce order. There is no scope for a Judge to arbitrarily refuse to approve the divorce petition.
Arrangement about the care of any children or financial settlement, should ideally be finalised prior to Decree Absolute.
A minimum 20-week period from application for divorce to the granting of the Conditional Order has been introduced. This has been put in place to allow for a course of reflection and time to resolve children and financial matters.
Why did the law need reform?
The fault-based divorce system had been criticised for many years for being outdated and stirring up unnecessary conflict between divorcing couples. For most parties, they simply drift apart or decide they want different things in life – the conflict sometimes only arose when they embarked upon the adversarial divorce process.
Even where prior conflict existed, many were of the opinion that playing the ‘blame game’ merely reinforced entrenched positions which were carried into financial issues and had a detrimental effect on the family as a whole, including children.
Over recent years, there have been several cases of people being forced to remain married to their spouses. The most high-profile of these is the 2018 case of Tini Owens. Tini wanted to divorce her husband of 40-years on the grounds that she was unhappy, however he refused the split and contested the divorce.
The couple, who originally married in 1978, had two adult children. Tini told the court she had been actively considering divorce since 2012 but did not leave the matrimonial home until February 2015. Mr Owens refused to agree to a divorce and denied Tini’s allegations about his behaviour, alleging if their marriage had broken down it was either because she had an affair, or because she was “bored”. The Judge in the original case, found the marriage had indeed broken down, but that Tini’s examples were “flimsy and exaggerated”.
Tini appealed and took her case to the Supreme Court, and although the Justices analysed rival legal arguments revolving around the concepts of “unreasonable” behaviour and “fault”, they reluctantly ruled that it was a case for Parliament, and Tini lost.
Supreme Court president, Lady Hale, said she found the case “very troubling” but it was not for judges to “change the law”. The case sparked huge debate surrounding whether divorce laws in England and Wales needed to change.
In the biggest shakeup of divorce laws for 50 years, the government reintroduced the Divorce, Dissolution and Separation Bill to Parliament with an aim to ease the impact of unnecessary conflict on couples and children. In June 2020, the Bill received Royal Assent to become an Act.
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