No-Fault Divorce is a major change to divorce law, meaning that couples will no longer have to blame one another for the breakdown of their marriage.
What is No-Fault Divorce?
No-Fault Divorce is the name that has been given to the new divorce regime which will become effective in law in England and Wales from 6 April 2022. From this date, a person wanting to initiate a divorce will no longer have to allege that their marriage has broken down through the fault of the other person i.e., it removes the element of blame.
The new divorce regime is a massive sea change to the current law which has been heavily criticised over the years for being outdated. The current system has been in place since 1973.
What is the current divorce regime?
Currently, there is only one ground that a person seeking a divorce can rely on, namely, they must show that there has been an ‘irretrievable breakdown’ in their marriage. To prove this, the party seeking the divorce must rely on one of the following five facts:
- The other party’s adultery;
- The other party’s unreasonable behaviour (this requires the party seeking the divorce to provide detailed examples of that behaviour);
- Two years desertion;
- Two years separation and with consent to divorce (this requires consent from both parties); or
- Five years separation (the other party’s consent is not required).
The fact of adultery is not available for the dissolution of civil partnerships.
The current regime is inflexible and requires one party to try to fulfil one of the narrow categories outlined above which is often tricky, particularly where a couple have simply grown apart. The requirement for one party to blame another in order to get divorced (the only option without waiting at least two years following separation) can often escalate tensions as well as costs; nobody likes to read things about them which they consider are untrue and can be hurtful.
How will No-Fault Divorce work in practice?
The Divorce, Dissolution and Separation Bill which introduces No-Fault Divorce will keep irretrievable breakdown of the marriage as the sole ground for divorce but will bring the following changes:
- Joint application – An application for divorce can be made jointly by the separating couple. However, an application solely made by one party is still accepted. Under the current regime, only one party can make the application. The joint application aspect of No-Fault Divorce will help to allow couples to have a completely amicable separation.
- Statement of irretrievable breakdown – The ‘five facts’ will be replaced. Instead, the applicant (or applicants) will need to submit a simple statement confirming that there has been an irretrievable breakdown of the marriage.
Under current law, deciding the basis of a divorce petition can become very litigious and argumentative in itself and can have a detrimental effect on the parties relationship which can then make it even more difficult to agree arrangements for children or to resolve financial issues. With No-Fault Divorce, blame is removed.
- Plain English - Outdated terminology will no longer be used.
- ‘Decree Nisi’ will become a Conditional Order - The Court cannot make a binding financial order until after the Conditional order is made under the new divorce regime.
- ‘Decree Absolute’ will become a Final Order – The Final Order will formally dissolve the marriage.
- The ‘Petitioner’ will become the Applicant – The Applicant (or Applicants) will be the person (or persons) that start divorce proceedings.
- No contest – The other party will no longer be able to contest the divorce, dissolution or separation. This means that there will be significantly less delay, cost and stress in cases where one party may be seeking to contest the divorce.
- Timescales – The applicant (or applicants) will be required to wait 20 weeks from the start of the divorce proceedings until a Conditional Order is made. This is to allow the couple sufficient time to reflect on whether they would like the divorce to proceed.
During this time, the couple can also try to reach an agreement on other aspects of their separation. For instance, they may want to consider how they will co-parent their children. They may also use this time to reach a financial agreement as to how to divide their assets – that can mean selling the home; considering how much maintenance one party should pay to the other, or how to share their pensions. The applicant (or applicants) will then need to wait a further six weeks from the date of the Conditional Order until a Final Order can be made. This latter period reflects the current waiting period between Decree Nisi and Decree Absolute.
Should you wait for No-Fault Divorce?
You may want to consider the following when considering whether to delay starting divorce proceedings until the new regime comes into effect:
- No-Fault Divorce Timescales
Under the new divorce regime, the separating couple will not be able to get divorced until October 2022 at the earliest, if divorce proceedings are initiated after 6 April 2022. There could also be court delays (as there are now) with processing paperwork so realistically the divorce may not be finalised until the end of 2022.
You may have a valid reason to initiate divorce proceedings now e.g. your partner’s unreasonable behaviour or adultery. However, your partner may indicate that they intend to defend the divorce on the basis that they do not agree with the fact you are trying to rely on. This would involve a delay to the divorce proceedings as well as added costs and stress associated with attending court.
- Potential impact on a financial settlement
By way of example, a couple may wait for No-Fault Divorce but reach an agreement about their finances now, involving one party buying the other out of the matrimonial home and a sharing of pension. The matrimonial home buy out can happen on a practical basis and may not cause any problems. However, when it is time to draft the financial order in Autumn 2022, the value of the matrimonial home may have increased, and one party may wish to revisit the buyout figure. This could be problematic. One party may attempt to resile from what was agreed despite an agreement being reached in good faith.
In terms of pensions, a pension cannot be shared until after divorce is completed. Therefore, figures used now to agree the percentage pension share that one party will receive may change significantly in the intervening period.
The fact is that a binding financial agreement cannot be made until the Conditional Order stage of the divorce is reached. As that is likely to be towards the end of 2022 based on the new timings, that means couples cannot have financial certainty until then.
If you separate before April 2022 but intend to take advantage of the No-Fault Divorce regime from April 2022 then you should consider the tax consequences. The new regime will fall into the following tax year and different tax rules apply to different assets if transfers take place between spouses other than in the tax year of separation – specialist tax advice is always needed.
The costs of the divorce under the new divorce regime are likely to be cheaper as the process is less contentious.
The introduction of No-Fault Divorce has been labelled “a landmark moment” by Law Society President, Simon Davis. It is anticipated that it will make the process of separating easier and more amicable for the separating couple by removing unnecessary conflict.
If you would like to know more about No-Fault Divorce or if you have any further queries relating to a separation, then please do not hesitate to contact me or another member of the Family Team.
