Insight

No fault divorce coming soon

Under the current fault-based divorce system in England and Wales, one spouse must make accusations of either unreasonable behaviour, adultery or desertion against the other in order to commence divorce proceedings, applicable after the first year of marriage. If neither party wishes to allocate blame, then they will need to show that they have been separated for at least two years and they are in consensus to divorce. If the other party does not consent, then you must be separated for at least five years before issuing divorce proceedings.

The main issue under current law for many years is that many couples are unwilling to fulfil the separation period required to proceed with a no-fault divorce and look to dissolve their marriage as quickly as they can, especially as fault already has no bearing on the financial outcome of divorce.

The only option for couples who don’t want to wait is to currently use 1 of the blame based grounds, quite often leading to acrimony and further polarisation of the parties, particularly difficult when there are children involved.

New non-fault based divorce laws

The long-awaited Divorce, Dissolution and Separation Bill has been given approval and will come into force in April 2022. Many family law practitioners have described it as the ‘biggest shake up in divorce law for 50 years’ as it will replace the current divorce law to a no-fault divorce system.

Under the new legislation, couples will be permitted to commence divorce proceedings after the first year of marriage and will only need to satisfy the court that the marriage has irretrievably broken down, this is the only ground for divorce and no specific facts need be established.

The new legislation also :

  • abolishes the requirement for consent to the divorce and the Respondent will no longer have the option to defend the divorce proceedings or apply to cross petition, saving both parties time and significant costs.
  • allows couples to jointly file a divorce petition expected to remove the concept of any prejudice if you are not the petitioner, allowing the parties a level playing field.
  • does not allow for a ‘quickie divorce’ – after the divorce petition has been issued, there is a 20 week “cooling off period” before applying for a final divorce/conditional order. However, the successful online divorce portal should reduce any delays.

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