No-Fault Divorce

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No-fault divorce removes the previous law’s requirement to establish one or more grounds to prove the marriage has broken down

irretrievably. The language of divorce has also been brought up to date:

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• ‘Decree Nisi’ is now ‘Conditional Order’

• ‘Decree Absolute’ is now ‘Final Order’

• ‘Petitioner’ (the person submitting the divorce application) will be the ‘applicant’
   

It also now allows to apply for a divorce jointly where both parties can agree that the marriage has broken down irretrievably,

although if they cannot agree, applicants can still submit their own application.

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There is 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 is to allow couples a period in which they may change their mind, similar

to a “cooling off period”. If, after that period, the couple still wish to divorce, they must confirm this to the court when they

apply for the Final Order which can only be applied 6 weeks after the Conditional Order. The process therefore takes a

minimum of 26 weeks but in reality takes longer for various reasons including unresolved financial issues and court workloads.

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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 action of the other individual, or no fault that is greater on the part of one spouse than the other.

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No fault divorces pave the way for a reduction of conflict and stress and allows the parties to focus on the central issues, including property, and any matrimonial assets, and of course, any children.

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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.

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Will a no-fault divorce cost less? - It makes sense that if a divorce is less protracted, then any 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 there is no blame needing to be proved 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.

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