No-Fault Divorce – File Now or Wait Till Later?

For a number of years, professionals have been campaigning to remove the need to place blame on one party when seeking a divorce or dissolution. On 26 June 2020, the Divorce, Dissolution and Separation Bill gained Royal assent, signalling one of the biggest family law reforms in the last 50 years.

Unfortunately, things have slowed down somewhat since then, with the Government confirming in June 2021 that the timetable for implementation in Autumn 2021 was “ambitious and that the reforms will now come into force on 6 April 2022.

Why no-fault divorce and dissolution?

Whilst critics of the campaign have argued that taking away the “blame” from the process will result in an increase in the number of couples choosing to separate, many practitioners have welcomed this change, believing that it will remove some of the hostility experienced by parties deciding that their marriage or civil partnership has irretrievably broken down. The aim is that removing the blame will encourage parties to move forward and proactively seek a resolution as promptly as possible.

Fault and financial awards

Those filing for a divorce or dissolution on the basis of unreasonable behaviour or adultery often question whether their partner’s conduct will have a bearing on the financial settlement they receive.

Indeed, separating couples are often surprised to hear that bad behaviour is only rarely considered by the Court’s in cases where it would be “obvious and gross” and inequitable to disregard it. The threshold is high, meaning adultery and even criminal behaviour (in the majority of cases) will have no bearing on the financial settlement. It is therefore unlikely that the new no-fault system will alter the current status quo.

What will change?

The finer details of the new application process are still being ironed out. What we do know is that the requirement to rely on specific facts will be replaced with the need for an applicant to provide a statement of irretrievable breakdown. It will also be possible for individuals to jointly apply for a divorce or dissolution.

There will be some basic changes to terminology too, to try and make the process simpler for non-lawyers. A divorce petition will be referred to as an application, the petitioner will become the applicant and you will apply for a Conditional Order (rather than Decree Nisi) and a Final Order (instead of Decree Absolute).

Will the new process be quicker?

The two-stage process will remain, with parties first applying for a Conditional Order (the half-way stage) and then applying for a Final Order. The rule prohibiting divorce or dissolution within one year of a marriage or civil partnership will remain too.

The new process in itself is unlikely to be quicker, as there will be a new minimum period of 6 months before you can obtain a Final Order.

Should I wait?

It is important to factor the further delays into your decision-making. Whilst the no-fault system is not yet in place, it still remains possible to divorce amicably whilst relying on a fault-based fact. In practice, parties often exchange copies of their drafted petition and seek to agree the finer details up-front to avoid any delays or obstacles further down the line.

Should it not be possible nor preferable for you to petition on the basis of your partner’s unreasonable behaviour or adultery, under the current law your options are to wait until you have been separated for two years (with consent), or five years (without consent).

Get in touch

Our expert team of family solicitors can advise on a range of issues, including domestic abuse, family disputes, divorce, dissolution, and child arrangement matters.

To discuss any of the issues raised in this note, or to find out how we can assist you further, please telephone us on 01494 451355 (High Wycombe office), 01628 958445 (Marlow Office) or 020 3443 9576 (City of London office). Alternatively, you can email us at family@curzongreen.co.uk.

By Nicola Corby, Trainee Solicitor

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