Four ways no fault divorce will change the divorce process and four ways it won't

The long-awaited ‘no-fault’ divorce law will come into effect from autumn 2021, after being announced by the government in 2018. The new law will allow couples who are married or in civil partnerships to apply for a divorce without assigning blame to one partner.

Under the current law, when applying for a divorce, a person must provide one of the following five ‘reasons’ as evidence of the irretrievable breakdown of the marriage:

  1. Adultery
  2. Unreasonable behaviour
  3. Desertion
  4. Separated for two years (both partners must agree)
  5. Separated for five years

The new law will change the divorce process in several ways, but the most important one is that couples, for example those who have naturally drifted apart, will no longer have to blame each other for the breakdown of their marriage.

This situation was thrown into the limelight in 2018 when Mrs Tini Owens was denied a divorce from her husband by the Supreme Court. They could not find that Mr Owens’ behaviour was deemed as ‘unreasonable’ and therefore, Mrs Owens would have to live separately from her husband for five years before being allowed to apply for a divorce again.

Campaigners have fought hard for the current laws to be changed to stop couples living in loveless marriages for years before being allowed to divorce. So, what changes will ‘no fault’ divorce bring to the divorce process and what will stay the same?

Four ways the divorce process will change

When the new law comes into effect next year, there will be four key changes to the divorce process:

  1. Divorcing couples will no longer have to provide a ‘reasons’ but instead a ‘statement of irretrievable breakdown’ which does not have to be based on fault. Removing the ‘blame game’ allows couples to separate amicably and reduce hostility.

  2. Currently, less than 2% of divorces are contested, and it is a practice known to be misused by abusers, allowing them to continue their controlling and coercive behaviour. Therefore, the ability to contest a divorce will be removed allowing divorces to be processed more quickly and with less conflict.

  3. Rather than one partner petitioning for a divorce against the other, an option for couples to apply for a joint divorce will be introduced. Again, this removes the ‘blame’ factor in divorce proceedings and allows couples to split amicably.

  4. A new minimum timeframe of 20 weeks, from the initial petition and the conditional divorce (‘decree nisi’) will be introduced. This will allow couples a ‘meaningful period of reflection’ to consider the divorce and to turn back if they wish. If this isn’t possible, this time gives couples the opportunity to make financial, childcare and other practical arrangement that they may need.

Four ways the divorce process won’t change

  1. Although the two-stage process to divorce will stay the same, i.e. ‘decree nisi’ and ‘decree absolute’, the language will change. The law will now reflect more modern terminology, so ‘decree nisi’ will become a ‘conditional order’ and ‘decree absolute’ will become a ‘final order’.

  2. The sole ground for divorce will remain the same, i.e. the ‘irretrievable breakdown of marriage’. The only difference is couples will no longer be asked to choose one of the five reasons or ‘facts’ as evidence of this breakdown in the relationship.

  3. The current minimum period of six weeks between obtaining a conditional order (decree nisi) and applying for a final order (decree absolute) will remain in place. This is to give couples the time they need to make any arrangements before the divorce is final.

  4. Although the new laws will make the divorce process simpler and more efficient, it is still recommended that divorcing couples seek the advice of a lawyer who will guide them through the process. This is particularly important when there are high-value financial settlements to arrange.

Bringing divorce into the 21st century

The new reforms to divorce law aims to retain the things that work well under the current law but to remove things that can encourage hostility and conflict between divorcing couples. The goal is to allow couples to divorce amicably and to reduce any negative impact  and stress divorce can have on them and their children.

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