No fault divorce: what will change on 6 April 2022?

Anna Barrick, Paralegal in Coodes Solicitors’ Family team, outlines what will change with the introduction of a ‘no fault divorce’.

After campaigns and consultations lasting for more than three decades, imminent legal changes mean couples can soon opt for a ‘no fault divorce’.

The Divorce, Dissolution and Separation Bill was finally passed in the House of Commons in June 2020. The legislation will come into force on 6 April 2022. We welcome the change, which will give separating couples the opportunity to divorce without having to point the finger of blame.

So, in practice, what difference will the changes make?

No need to play the blame game

When a marriage or civil partnership breaks down, one party has traditionally had to divorce the other on one of an agreed number of ’facts’, including ‘adultery’ and ‘unreasonable behaviour.’

This typically means one individual having to find fault with the other. The blame element in a divorce is steeped in emotion. Some couples become embroiled in arguing over who is to blame in relation to a marriage breaking down.

‘Unreasonable behaviour’ is the most commonly cited ground for divorce. Even for those couples who try to remain amicable, the reality is that having to lay blame on one party for the breakdown of the relationship can increase animosity.

The changes made by the Divorce, Dissolution and Separation Act mean that blame no longer needs to be assigned to one party. A separated couple can even apply jointly for a divorce, making the process more straightforward.

The move to a no fault divorce therefore means that couples will no longer have to blame each other for the marriage breaking down.

The wait is over

It has always been possible to divorce without assigning blame. However, this is currently only an option for couples who have first separated for a period of time. If both people consent to the divorce, two years’ separation is sufficient. Alternatively, one person can start the divorce without the need for the other to consent, where they have been separated for five years.

Typically, these divorces are more amicable as the emotional wounds have begun to heal. However, for many couples it is not viable to wait for two or five years for a divorce because they want to resolve matters as quickly as possible.

Those couples who don’t want to wait to start divorce proceedings will no doubt welcome the changes being introduced on 6 April.

An end to defending a divorce

If someone believes the marriage is over, should there be any opportunity for their spouse to stop the divorce? Currently a divorce can be ‘defended’, which means one party does not agree to the divorce petition so it cannot be progressed. Most people agree that this is an outdated concept.

While it is rare for someone to defend a divorce, there have been some high profile cases, including that of Hugh and Tini Owens.

Obtaining a divorce no longer has the same social stigma attached to it as it has historically. Taking away the possibility of ‘defending’ a divorce is a very positive step.

Less chance of spiralling legal costs

Unfortunately, legal costs are often wasted arguing about draft divorce petitions. This diverts attention from what should really be the main focus for both parties, which is to resolve the financial consequences of the breakdown of the marriage and to try to agree arrangements for children.

Removing blame from the divorce application and making the process more straightforward should help separating couple to maintain their parental relationship for the sake of their children. It should also mean that the divorce process is less drawn out and therefore less expensive.

No changes to financial settlements

While the divorce process is being amended, the law around dealing with matrimonial finances is not changing and remains highly complex. There is no simple calculation to determine how the assets of a marriage should be divided.

If the separated couple cannot agree on a financial settlement then the court has a range of powers available to make orders. We advise and assist clients through the process of voluntary disclosure and keep negotiations as amicable as possible.

Under the Matrimonial Causes Act 1973, the court has many factors to consider. It must ensure any financial settlement is fair and reasonable to both parties, taking into account all of the circumstances of the case.

It is important for both individuals to make full and frank financial disclosures so a family lawyer can provide detailed advice. If one party will not engage in voluntary disclosure or negotiations have broken down, you can make a court application to resolve financial matters.

It is very important not to finalise the divorce before obtaining the financial order. In some cases, you should not finalise the divorce until you have started to implement the terms of the financial order.

Finalising the divorce without resolving finances properly can leave you in vulnerable and precarious financial positions. That is why you should seek legal advice in relation to matrimonial finances.

While the introduction of a no fault divorce could make the divorce process simpler for many couples, it will not change financial settlements.

Under the current legislation, you can file divorce petitions up to 31 March 2022. After that, only urgent divorce petitions can be filed while the court implements the new system ready for 6 April 2022.

For more information or advice on these issues, please contact Anna Barrick in the Family team at Coodes Solicitors on 01726 874762 or anna.barrick@coodes.co.uk.