In April 2022, the law relating to divorce sees a significant change. This relates to the introduction of the ‘no fault’ divorce. Family law practitioners have been campaigning for the ability of all spouses to bring a ‘no fault’ divorce against their separated spouse for many decades. This therefore represents an important and seismic shift in the legal landscape.
In this piece we explore the current legal process for divorce, and how we anticipate this changing come April 2022.
What is the current divorce process?
At present, there is only one ground to divorce and that is that the marriage has ‘irretrievably broken down.’ The person applying for the divorce (‘the Petitioner’) then has to rely on one of five ‘facts’ in support. These facts are:
- Their spouse has committed Adultery;
- Their spouse’s unreasonable behaviour i.e. the spouse has behaved in such a way that the party can no longer be expected to live with them;
- Their spouse has deserted them for a period of at least 2 years;
- The parties have lived apart for a continuous period of 2 years and both parties consent to the divorce;
- The parties have lived apart for a continuous period of 5 years, whether or not the spouse consents.
How will ‘no fault’ divorce change the process?
Under the new change in law from April 2002, the main difference will be the removal of the requirement for the Petitioner to rely on one of the five ‘facts’ listed above. This paves the way for one or both parties to apply for a divorce (a ‘Divorce Order’) without the need to place the blame on the other party.
Either one party, or both parties together, can apply to the Court for a ‘Divorce Order’. Within the application there will be a statement to confirm that the marriage has broken down irretrievably.
A new minimum period of 20 weeks from the date when the application is issued, to the first stage of the divorce, is also a feature. This is known as the ‘period of reflection’ and prior to any ‘Conditional Order’ (equivalent to the current Decree Nisi) being issued, one (or both) parties will be required to reconfirm that they wish for the divorce to continue (or not).
The current timescale of a minimum of 6 weeks and one day between the ‘Conditional Order’ and the ‘Final Order’ (equivalent to the Decree Absolute) is to remain in place.
Why is ‘no fault’ divorce a key milestone in family law?
We started this piece by setting out that family law practitioners have been campaigning for this change for several decades. It might be asked: Why? Under the current legal framework, it is not at all ideal that parties start off a process where they need to allege blame and fault against their spouse from step one, within the divorce petition paperwork. It sets things off on a difficult footing, and can test even the most amicable of couples who have strong intentions in wishing to achieve an amicable divorce from their spouse. The revolutionary change to a ‘no fault’ position for all divorces, will mean that amicability can become a more achievable goal for spouses setting out on the divorce process.
There is a wealth of research that has circled around family law journals for years about the devastation contentious and bitter divorces can cause to families, and most significantly to children. Many now adults, who were at one time children of acrimoniously divorcing parents will still bear the scars of that period of time in their lives where their parents were at war with one another. This would have also been an emotionally challenging time for the parents of these children of course. There are no good outcomes for families in these kind of cases.
Quite aside from the emotional scarring of a bitter divorce, comes the need for a more costly process to achieve the dissolution of the marriage, decide on the appropriate division of assets, and determine the arrangements for the children. With every hope, and starting off on the right footing with a ‘no fault’ divorce will minimise the numbers of these type of cases, and see spouses being more agreed on matters which connect to the divorce.
Summary
The ‘no fault’ divorce legislation which we will see introduced in April 2022 feels well overdue. It’s a responsible step from government, and we await its benefits to all divorcing spouses as the new law plays out in our practices.
For expert help & advice with your divorce matter, please contact us today on 0113 284 5000 or email family@isonharrison.co.uk
