No-fault divorce: what separating couples need to know
"The introduction of no-fault divorce law is an extremely significant and very welcome change to the landscape of matrimonial law. The new system will allow separating couples to start the often very difficult process of divorce without heightening tensions from the outset, which we very much hope will in turn mean that other issues can be resolved without unnecessary acrimony and additional stress as far as possible. It will of course remain important for couples to ensure they seek legal advice from the outset which is specifically tailored to their individual circumstances, particularly in situations where complex financial assets are involved, or complicated disputes about child arrangements."
Quote from Daniel Eames, Partner
Why has the law been reformed?
Under the previous law those wanting to separate in the UK had to rely on one or more facts to prove that their relationship had irretrievably broken down: unreasonable behaviour, adultery (not available for civil partnership dissolution), desertion for at least 2 years, separation for at least 2 years with the consent of both parties, or separation for at least 5 years without consent of both parties.
To get divorced straight away, the petition was brought by one party who would effectively 'blame' their spouse for the divorce. As a result, there was no opportunity for parties to make an application by mutual agreement until they had been separated for at least 2 years.
It could also put someone at risk financially if their financial separation had not been addressed until they eventually divorced some years after separation.
If one party disagreed with the divorce or the facts relied upon, they could contest the divorce and possibly even prevent it.
There was a common consensus amongst family law experts that the "blame game" of the previous law was unnecessary and if one party wanted to divorce, they shouldn’t have to prove their difficulties or potentially be forced to stay married if their spouse did not agree.
What does no-fault divorce mean for you?
No fault divorce now enables couples and their lawyers to focus on positive uncoupling rather than allocating blame, especially when separation is a mutual decision.
Those separating will no longer have to rely on the 'five facts' to prove the ground for divorce – the irretrievable breakdown of the relationship.
The new law instead promotes and encourages a more constructive approach to separation.
It allows separating couples to reflect and provide them with autonomy - trusting their judgement that their relationship has broken down without them having to particularise their claim.
A reconciliatory tone from the outset will encourage parties to focus more constructively on the more important and difficult aspects of divorce, such as their financial and child arrangements.
The less conflict that arises from relationship breakdown, the better children will be able to cope and the more chance that parents will be able to have a pragmatic and collaborative approach to their parenting in the future.
What is the new process be?
Parties can either sign a joint application that the marriage or civil partnership has irretrievably broken down, allowing for a completely amicable separation or one party can file a sole application if their partner does not agree to the divorce. The application in itself is conclusive proof that the marriage is over.
The disagreeing party can not defend the divorce, dissolution or separation. This means that if one party has decided that they wish to divorce, in the vast majority of cases they will not have to worry about their partner contesting the divorce which will save considerable time, stress and costs (be aware legal challenges will still be possible for example where there is lack of jurisdiction, the invalidity of the marriage or coercion).
Timescales have also changed. There is a new minimum period of 20 weeks from the start of proceedings to when the 'conditional order' can be made (the "half-way" stage of the process). This is designed as a 'cooling-off period' to give parties a period of reflection and time to sort out arrangements regarding finances and any child arrangements. There is then a six-week period between the conditional order and when the final order will be made, meaning the marriage will officially be dissolved.
Should you get a no fault divorce?
If you are ready to start divorce proceedings and believe that your divorce will go through without any problems because both you and your partner agree that the relationship has irretrievably broken down, then there is probably no reason to delay.
There are however some reasons you may wish to go with a no-fault divorce:
- Tax advantages - tax rules are different depending on whether you are married, separated or divorced. The tax rules during and following the tax year of separation are complex and will depend on individual circumstances.
- Contested divorce - in circumstances where your partner has said they will contest your application, if you get a no fault divorce they will not be able to do this and you can avoid the conflict and expense of proceedings that it will bring.
- Lack of reasons - if you do not have one of the 'acceptable' reasons for divorce such as adultery or unreasonable behaviour as the only other way is if you have been separated for 2 years and your partner consents or if you have been separated for 5 years. If neither of the latter applies, then getting no fault divorce is likely to speed up the divorce process.
- Other challenges - if you and your partner have been separated for 5 years but you think they may challenge the divorce on the basis that it will cause them 'grave financial hardship' (this is one of the very few defences to this fact). Rather than contesting this in court it may be easier to get a no fault divorce.
Whatever your circumstances, it is worth seeking tailored legal advice to make sure that you are making the right decision for yourself and your family, at the right time.
There are certain nuances that may affect your case and may not be immediately obvious – such as international connections, financial circumstances and other issues, which a suitably-qualified family lawyer will be able to identify and advise upon, so that you can be certain that you are taking the right steps.
Although the no-fault divorce will go a long way to help couples approach to divorce in a conciliatory manner, everyone's situation is different and it's understandable that separations may still involve levels of conflict.
When separations involve complex financial assets, or complicated disputes about child arrangements it is especially important to seek legal advice and understand your rights and responsibilities.
For tailored advice about no fault divorce or any other aspect of divorce please get in touch.
With thanks to Jasmine Nicholes, Trainee Solicitor, for her assistance with this article.