No fault divorce to start in autumn 2021
By Judith Rouse
SOLICITOR & ASSOCIATE
From autumn 2021, separating couples will no longer need to blame each other for the breakdown of their marriage or civil partnership.
The long-awaited option for a ‘no-fault’ divorce is to be introduced by the Divorce, Dissolution and Separation Bill, which has passed the House of Commons and it on its way to receiving Royal Assent.
First announced in 2018, the changes to divorce law will remove the need for one spouse to take the blame for the failure of a relationship or for a couple to wait at least 2 years to divorce if neither wants to take the blame. It will also prevent either spouse from contesting the divorce or dissolution.
The intention is to bring the divorce and civil partnership dissolution processes into the 21st century, allowing couples to avoid unnecessary conflict, while making divorce and separation faster, less costly and more amicable.
What is no fault divorce?
No fault divorce means that couples will be able to get divorced without needing to explain or provide proof of the reasons for the failure of their marriage.
Couples will be able to make a joint application for the divorce, allowing them to start proceedings together. Where only one spouse wishes to get divorced, they will still be able to submit a petition by themselves and their spouse will no longer have the right to contest the divorce.
Why is no fault divorce being introduced in England and Wales?
The goal of introducing no fault divorce is to simplify the divorce process, remove the potential for conflict and prevent people being stuck in marriages they would prefer to leave simply because their spouse objects to the divorce.
Under current divorce rules for England and Wales, anyone wanting to petition for divorce will need to show that their marriage has irretrievably broken down due to one of the following five reasons:
- Adultery – Where your spouse has been unfaithful with someone of the opposite gender (same sex infidelity is currently classified as ‘unreasonable behaviour’ instead).
- Unreasonable behaviour – Where your spouse has behaved in such a way you could no longer reasonably be expected to live with them (this covers a very wide range of behaviours and is the mostly commonly cited reason in divorce petitions).
- Desertion – Where your spouse has left you for at least 2 years out of the last 2.5 years without your consent, without good reason and with the intention to end your relationship.
- Separation for at least 2 years – If both spouses agree to the divorce.
- Separation for at least 5 years – Whether both spouses agree to the divorce or not.
What this means is that, unless you are willing to wait at least 2 years, one spouse or other will need to take the blame for the failure of the marriage. Under current rules, your spouse can also object to the divorce, meaning you would need to take them to court or wait 5 years for a divorce they cannot contest.
The 2018 case of Owens vs Owens highlights the limitations of current divorce rules. Tini Owens, a 68 year old woman from Worcestershire, attempted to divorce her husband only for him to contest the divorce.
Mrs Owens took her case all the way to the Supreme Court, which ultimately ruled in her husband’s favour on the basis that Mrs Owens could not prove that any of the accepted reasons for divorce applied. She was thus required to wait until she had been separated from her husband for a minimum of 5 years before she could divorce him.
What will no fault divorce mean for separating couples?
No fault divorce offers various benefits for separating couples, including:
- Getting rid of the “blame game” – it will no longer be necessary to give reasons for why the marriage has broken down, removing the need for one party to “take the blame”.
- Stopping people from contesting a divorce – it will no longer be possible for someone to contest a divorce started by their spouse, preventing people from being trapped in a marriage they wish to leave.
- Making divorce faster – by making the process more straightforward, many potential sources of delay (such as disagreement over the reasons to give for the divorce) will be removed.
Is it worth waiting for no fault divorce?
Given that the new rules for divorce won’t come into effect for over a year, if you are currently thinking of getting divorced it most likely won’t make sense to wait.
While no fault divorce will tend to make the divorce process simpler, faster and less costly for a lot of people, getting divorced under the current rules can still be relatively straightforward and serious conflict can usually be avoided with the right approach.
By practicing good communication with your spouse about your intentions and working together to deal with any challenges, such as separating your finances, you will normally be able to get divorced without the need for court proceedings.
Will you still need a solicitor for a no fault divorce?
Although the no fault divorce rules will make the divorce process simpler, separating couples are still likely to need the assistance of trained legal professionals.
Firstly, a solicitor can help to ensure all necessary documents are completed fully and accurately, and that they are submitted promptly. This can speed up the divorce process by avoiding any unnecessary delays, such as if there is a mistake in a form that would then need to be resubmitted.
Secondly, a solicitor is essential when you need to separate your finances, make arrangements for children or deal with any other legal issues arising from your divorce. These issues can be very complex with strong potential for conflict, so having expert legal support increases your chances of getting the outcome you need while keeping things amicable.
Ultimately, no fault divorce will tend to make life easier for separating couples, but that doesn’t mean the divorce process won’t still have its challenges where expert advice will be needed.