No Fault Divorce - 1 Year On

Major Changes to Divorce Law

On 6^th April 2022, the Divorce, Dissolution and Separation Act 2020 reforms came into force. The new legislation made three major changes to the divorce process and how separating couples could apply for divorce:

1. Previously, one spouse had to cite one of five grounds to obtain a divorce. These grounds were adultery, unreasonable behaviour, desertion, separation for at least 2 years with both parties’ consent and separation for at least 5 years. A few of these grounds meant that one spouse had to assign blame to the other and had to provide examples to the Court of the behaviour of the non-applying spouse. The other grounds required the parties to wait a certain length of time before being able to apply. This often increased animosity and tension between the separating couple.
   
   The first major change removed the requirement for one of the five grounds to be cited when filing for divorce and allowed spouses to apply without assigning any “fault”. A spouse now applies for divorce based on irretrievable breakdown of the marriage only.
    
2. Under the old legislation, the non-applying spouse had the option to “contest” the divorce petition. This was a lengthy and costly process that added an additional hearing to the divorce process. It was also rarely successful and again, added further tension and emotional distress for the separating couples.
   
   The DDSA 2020 has limited the possibility of the divorce processing being contested. A non-applying spouse can now only contest the divorce via two ways, citing that the Courts of England and Wales do not have jurisdiction over the marriage or, that the marriage has an issue with its validity.
    
3. Previously, one only spouse could issue for divorce. They would therefore be named as the “petitioner” and the other spouse as the “respondent”. Therefore, even if the separating couple both agreed that the marriage had broken down irretrievably, one spouse had to divorce the other.
   
   The new legislation has provided an option for what is known as a “joint application”. Both spouses could therefore be known as the applicants in the process, and it removes the stigma of one spouse being divorced.

The Advantages of No-Fault Divorce

1. No Blame
   There is no requirement for either spouse to “take the blame” for the breakdown of the marriage so there is less chance of a dispute arising between the separating couple as to who is to blame. Often, fault and blame would cause increased tensions and caused further conflict. This particularly affected the separating couple’s intentions and attitudes towards mediation / financial remedy proceedings when trying to resolve financial matters relating to the divorce. Reducing any tension or any reason for further conflict therefore is a major benefit to the new legislation.
    
2. Faster
   There is no option for a divorce to be contested (except in very limited circumstances as described above). This prevents one spouse from being locked into a marriage that they believe to has broken down irretrievably and prevents a costly and lengthy legal battle in trying to get the divorce to proceed.
    
3. More harmonious
   It allows the separating couple to make a joint application. This has made the process more harmonious and has helped the spouses to maintain a positive relationship with reduced tension and conflict. This is extremely helpful where children are involved and are adapting to their new routine spending time with each parent. It also encourages the spouses to have position attitudes and intentions to any financial matters, which is likely to decrease the need for a spouse to make an application to the Court to help with the division of assets an overall, reduce the likelihood of costly divorce proceedings. Separating couples who have a positive relationship throughout divorce proceedings are more likely to feel that they can undertake mediation or discuss financial matters between themselves.
    
4. Online Divorce
   The new legislation has also coincided with the Courts introducing the online portal. This has effectively made access easier for spouses to represent themselves in divorce proceedings as it is all completed online. Combining this with removing the need for blame to be apportioned, separating couples will find the process and application easier and have found that they are able to do this themselves, therefore, reducing the costs associated with being represented by a solicitor.

The Disadvantages of No-Fault Divorce

1. Too easy
   It has been considered that it is now too easy to obtain a divorce as a spouse only needs to state that the marriage has broken down irretrievably and not provide any reason or justification as to how they came to this decision. This, therefore, may prevent the separating couple from attempting to work on their issues within the marriage or from attempting a period of reconciliation.
    
2. Could take longer
   There is now a requirement that the applicant of divorce must undertake a 20-week holding period between issuing the divorce and being able to apply for the first order of divorce, known as the “Conditional Order”. This new requirement is an attempt by the Court to give the divorcing couple a period of reflection to ensure that they truly believe the marriage has broken down irretrievably. The 20-week holding period has therefore slightly increased the time in which a divorce can be obtained. However, this requirement could also be seen as a positive, the Court’s powers to make financial orders relating to the divorce do not arise until the Conditional Order has been granted. This 20-week period therefore allows the parties to concentrate on attempting to reach an amicable financial settlement.
    
3. No closure
   As stated above, the new process removes the option for blame to be apportioned to one spouse. Overall, this has been seen as a positive but in some cases, especially relating to adultery and unreasonable behaviour, the applicant wants their spouse to accept that they are at fault for causing the irretrievable breakdown of the marriage. For some spouses, it had been an avenue of closure for them. In any event, apportioning or not blame does not make a difference in the outcome of the divorce and is rarely cited as a conduct issue within any financial remedy proceedings.

Summary

The new legislation represented the first time divorce laws were reformed in 50 years. It was a well needed and welcomed change to the process, but has it increased the amount of divorce applications? According to data from the Ministry of Justice, there were 33,566 divorce applications between April and June 2022. The number of applications was up 22% from the same period in 2021 and the vast majority of the applications were made via the no fault process. This was predicted by many solicitors as a lot of separating couples were having to wait 2 or 5 years to start the divorce process and the new legislation removed this requirement so these couples could divorce sooner than originally expected. The combination of increases in divorce applications and limited resources within the Court has caused some delay in applications being processed and therefore, extended the time for divorces to be concluded.

Overall, the new legislation has brought about positive change in the process of divorce and solicitors are seeing the effects of a more streamlined Court process as well as increased positive relationships between separating couples.

Looking for some advice? 

We appreciate separation is not easy and that there are often issues that require the services of a lawyer. We can assist you in arranging matters following the breakdown of a relationship, whether you are married or in a cohabiting relationship. 

Call 01242 574244 or contact us to find out how we can help you with divorce and separation matters.