No fault divorce - a year on

It has been over a year now since no fault divorce was introduced, below I have answered the most common questions surrounding no fault divorce after a year since its inception.

1. ‘What is no fault divorce?’

Anyone wanting to get divorced before April 2022 had to rely on either their spouse’s adultery, unreasonable behaviour, 2 years of separation (provided both agreed), 2 years of desertion or 5 years of separation (regardless of agreement).  The law was changed so that it wasn’t necessary to claim any of these facts, just that the marriage had broken down.  It is no longer necessary to say why it broke down.

1. ‘Why was the law changed?’

The government claimed that there were significant numbers of couples who both agreed that there should be a divorce but who didn’t want to wait 2 years to use the 2 years separation and consent basis.  They were therefore having to make up allegations of unreasonable behaviour or adultery in order to get their divorce.  It was also claimed that having a ‘fault based’ divorce system meant that from the beginning, couples were encouraged to blame one another for the breakdown of the marriage and that this then made it more difficult for them to reach sensible and amicable arrangements regarding their children and finances. 

1. ‘Can you defend a no fault divorce?’

Effectively no.  It used to be possible to deny adultery or contest the allegations of unreasonable behaviour.  Now, if your spouse wants to divorce you they can and there is very little, if anything, that you can do about it. 

1. ‘What has been the public reaction to the changes?’

In my experience, those couples who both wanted to get divorced, but didn’t want to wait 2 years, are very pleased with the reforms as it means that they can start their proceedings more quickly.  However, they are in a minority.  There are far more people who are unhappily resigned to the fact there is nothing they can do about it, or who are very aggrieved that they can’t have their say in the divorce proceedings or do anything to prevent their spouse from divorcing them (even if they feel that they are innocent of the blame themselves).

1. ‘Was there any alternative to the changes?’

Yes, there was.  The government could have just shortened the option of ‘2 years separation with consent’ to ‘separation with consent’.  That would have solved the problem for couples who were in agreement but who didn’t want to wait 2 years.  It would have still left other options available where there wasn’t an agreed joint approach. 

1. ‘Are there any other disadvantages to the new law?’

Yes there are.  The new law says that after the divorce proceedings have been issued you then have to wait 20 weeks before you can take the next step.  When you do take that next step, there is then a further waiting time of about 3 or 4 weeks.  This is a problem for couples who have not only agreed that they want to get divorced, but who have also agreed on what they want to do with their finances.  In effect, they are faced with a wait of about 6 months before they can ask the court to formally approve their financial agreement.  This is particularly a problem where they want to share pensions as without formal court approval it is not possible to implement any such sharing. 

1. ‘Are there any other drawbacks?’

It is too early to be sure, but in some of the legal jurisdictions around the world, the introduction of no fault divorce has seen an increase in the number of contested children or financial cases.  It is almost as though couples who are deprived of the opportunity of ‘having their say’ in the divorce proceedings then become more determined to have it in other related areas.  Time will tell whether the same happens here. 

1. ‘Are these reforms actually ‘new’?’

The possibility of no fault divorce was first raised in The Family Law Act of 1996, more than 25 years ago.  It was said at the time that the main aim of the act was to ‘support the institution of marriage’ but the suggestions never made it into law at that time.  One of the requirements was for public information meetings, to be held in local village halls, to which anyone wanting to get divorced would have to go.  At the time, there was a rumour that when it was pointed out to government ministers that this would include them as well, the ideas were quietly shelved!

1. ‘So are the reforms overall good or bad?’

In my view, they are a mixed bag.  Some couples are probably helped but more are probably frustrated and even those who are helped can’t really understand why the system now has built in delays.  It will be interesting to revisit the statistics in a year’s time to see whether there are more contested children and financial cases as a result of these reforms. 

1. ‘How can I find out more?’

If this is something you are concerned about please call our Family Team on 01206 217320 for a free 15 minute chat to discuss.