No fault divorce is finally due to come into force

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The Divorce, Dissolution and Separation Act 2020 due to come into force in April 2022, is set to revolutionise the way in which couples can dissolve their marriage with the long overdue introduction of no-fault divorce in England and Wales.

As the law currently stands, one spouse has to initiate the process of filing for divorce and, within that process, make accusations about the conduct of the other spouse — such as unreasonable behaviour, adultery or desertion — or otherwise face up to five years of separation before a divorce can be granted. Even where a couple has made a mutual decision to separate, and both parties agree to getting divorced, absent proof of one of the three prescribed fault-based reasons as set out under the Matrimonial Causes Act 1973, the couple must still be separated for a period of two years before the marriage can be legally dissolved.

However, under the proposed new system, couples looking to move on with their lives more quickly will no longer need to become embroiled in a blame game following the breakdown of their marriage. Specifically, the new Act is set to replace the existing requirement by one party to evidence either poor conduct or a prolonged period of separation with a non-fault process. Instead, either or both parties can apply for a divorce by simply filing a statement that the marriage has irretrievably broken down. That statement will then be treated by the court as conclusive evidence that the marriage has indeed broken down and an order must be made.

Crucially, a minimum timeframe of 6 months from the initial application stage to the granting of a final order will also be created under the Act. This will give couples the time to reflect and reconsider, or where reconciliation is not possible, the opportunity to agree important arrangements for the future, such as how best to look after their children.

The proposed new Act is not designed to undermine the institution of marriage, hence the mandatory period of reflection, rather the rationale behind these reforms is that where divorce is inevitable, the law should not exacerbate conflict or harm a child’s upbringing. The provisions are intended to stop separating couples having to make unnecessary allegations against one another, and instead help them concentrate on resolving their issues amicably. By sparing couples the need to play the “blame game”, these changes will remove the antagonism that this creates so families can better move on with their lives.

Starting a divorce can be a very stressful time for all those involved, where the additional stress of having to attribute blame does not assist the situation, especially if the parties are doing their best to avoid any acrimony for the sake of their children. In some cases, the need to blame one another can often act as a catalyst for further fallout over care and access arrangements, as well as financial arrangements. The shift in the system from fault-based to no-fault divorce will finally mean that parties can, at the very least, deal with the dissolution of their marriage in a constructive and non-confrontational way.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.