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No fault divorce- what are the changes?

You may well have heard in the news that the government completely reformed the divorce process on the 6th April 2022, introducing the so called ‘no fault divorce’ . This removes the element of fault and blame from the divorce process and it is hoped that this will assist separating couples, making the court process less fraught and upsetting.

Here we look at the main differences between the old and new legislation.

The Old Legislation:                                                                                       

Previously in England and Wales, to end a marriage you need to prove that the marriage has irretrievably broken down, using one of the five facts or grounds for divorce, which were;

  1. Adultery;
  2. Unreasonable behaviour;
  3. Desertion;
  4. Two years’ separation by consent; and
  5. Five years’ separation

Couples who have not been separated for a number of years therefore most commonly rely on either adultery or unreasonable behaviour, which brings in the element of ‘fault'.

Bearing in mind typical delays with the court, the divorce process from start to finish under the old legislation could take anywhere from 4 to 9 months to reach Decree Absolute. Often couples chose to delay applying for the Decree Absolute whilst the marital finances are being resolved.

The New Legislation:

The ‘no fault divorce’ creates an entirely new 'blameless' system. This was introduced by the Divorce, Dissolution and Separation Act 2020 on the 6th April 2022.

Under the Divorce, Dissolution and Separation Act the ground for divorce in England and Wales remains that the marriage/civil partnership has irretrievably broken down, however,  'No-fault’ is now the sole reason for the divorce and this will therefore replace the old five facts/grounds.  The other big change is that you will no longer be able to contest the divorce, it will accepted that if one party thinks the marriage is over, then it is.

It is anticipated that the typical uncontested divorce process shall now be as follows:

  1. Either one party can make an application for a divorce on the ground that the marriage has irretrievably broken down, or if both parties are in agreement, a ‘joint petition’ can be filed confirming there is an agreement that the marriage has irretrievably broken down. The concept of a ‘joint petition’ has also been introduced under the new legislation, it has not previously been available to separating couples to petition for divorce together.
  2. There shall then be a minimum of twenty weeks wait between the issuing of the petition and the first stage of the divorce ‘the Conditional Order’ (replacing the Decree Nisi). It is intended that the minimum of twenty weeks will allow both parties a period of reflection on the marriage and the prospect of reconciliation.
  3. Once the Conditional Order has been made, there is a further period of six weeks’ which must elapse before an application can be made for the final stage of the divorce: the ‘Final Order’.

Whilst these changes will make the process for the actual divorce easier than they were, separating couples will still need to consider their financial settlements and any arrangements for children.  If you need any advice on divorce or financial settlements, our team are here to help.

 

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