The long-awaited enactments that pave the way for no fault divorces in the UK, become law in April 2022. With no fault divorce, there is no longer a need for couples to apportion blame to start divorce proceedings.
In this article, we will explore the pros and cons of no-fault divorce in the UK to help you understand the potential advantages and disadvantages compared to the old law, including an overview of the previous divorce laws, the changes, and their possible implications of no-fault divorce.
What is no fault divorce in the UK?
The introduction of no-fault divorce in the UK marked a significant change in the way that couples can end their marriages. No-fault divorce allows couples to obtain a divorce without the need to prove fault or wrongdoing by either party. This can make the process of obtaining a divorce simpler and less contentious, but it also has some potential disadvantages for couples to consider before deciding whether it is the right option for them.
The main advantage of a no fault divorce is that removing the requirement to allocate blame intends to enable the process to become more amicable and efficient. By submitting the fact that the marriage has simply failed, instead of seeking to hold someone accountable and supply evidence in support of a spouse’s wrongdoing, the changes may alleviate stress and prevent further deterioration in the parties’ relationship. This is particularly important in cases where the spouses have children and will have to co-parent following the conclusion of the divorce proceedings.
7 Key Benefits of a No Fault Divorce
1. Simplicity
2. Speed
3. Increased privacy
4. Reduced conflict
5. Cost savings
6. More time to reconsider options
7. Helping victims of domestic abuse
1. Simplicity
No-fault divorce allows couples to obtain a divorce without the need to outline the bad behaviour of their spouse or prove fault. This can make the process of obtaining a divorce simpler and less contentious, as the parties do not have to engage in any legal battles to prove who is at fault. It is also less traumatic as you no longer have to give any reasons why the marriage has broken down.
Before no fault divorce law, if there wasn’t a “behaviour” aspect, you would need to be separated for a minimum of two years to get a divorce. As this is no longer a requirement, it is now much simpler to get a divorce as you do not have to remain married for 2 years (but separated).
2. Speed
No-fault divorce may be faster to obtain than under the previous divorce rules because it does not require the parties to go through a lengthy legal process to prove fault. This can be beneficial for couples who want to move on with their lives as quickly as possible. If there is no negative behaviour in the marriage, it also means that you do not have to be separated (while still married) for a period of time before you are able to get a divorce.
3. Increased Privacy
No-fault divorce can be more private because it does not require the parties to air their dirty laundry in court. This can be beneficial for couples who want to keep the details of their divorce private, especially if there are sensitive or personal matters involved.
4. Reduced Conflict
No-fault divorce can help to reduce conflict between the parties because it does not require the need to provide evidence or a statement outlining the bad behaviour of their spouse. This can make the divorce process less contentious and more peaceful, as the parties do not have to engage in legal battles to prove fault.
5. Cost Savings
No-fault divorce may be less expensive than a traditional divorce because it minimises the amount of solicitor correspondence associated with agreeing the contents of the divorce application. There is now very little that needs to go into the divorce application apart from your personal details, the details of the marriage and confirmation that the marriage has broken down.
It is much more difficult to defend a divorce application under the new no-fault divorce laws than it was previously. Defences to divorce now involve legal technicalities rather than contesting the grounds for divorce based on the contents of the application. This can make the divorce process less contentious and more efficient, potentially saving couples time and money in legal fees.
6. More Time to Reconsider Options
Under the new no-fault divorce laws in the UK, there is a minimum waiting period of 20 weeks between the application being issued and being able to apply for the conditional order and a further 6 weeks and 1 day between the conditional order and Final Order. This is a longer period than under the old rules. This gives couples the opportunity for additional time to consider their options and potentially reconcile before moving forward with the divorce. This may be beneficial for couples who are not yet certain that they want to end their marriage and want to explore the possibility of reconciliation before moving forward with the divorce process.
7. Helping Victims of Domestic Abuse
No-fault divorce law aims to make the divorce process less hostile and more efficient for victims of domestic abuse. Previously, individuals seeking a divorce in the UK had to provide a statement outlining their spouse’s unreasonable behaviour before they could commence divorce proceedings. This requirement could be particularly difficult for victims of domestic abuse, as it could force them to confront their trauma and potentially face retaliation from their abuser. The new no-fault divorce process allows individuals to obtain a divorce without the need to prove fault or wrongdoing by their spouse, which may help to reduce conflict and protect the mental health of all parties involved, including children.
Potential Disadvantages of a No Fault Divorce
• Lack of accountability
• Limited legal remedies to defend the divorce
• Longer minimum waiting period
Lack of accountability
A potential disadvantage of no-fault divorce is that neither party is held accountable for the breakdown of the marriage. This may be frustrating for individuals who feel that their spouse’s behaviour or actions played a significant role in the breakdown of the marriage. In a no-fault divorce, the parties can simply state that the marriage has irretrievably broken down and move forward with the divorce process.
Limited Legal Remedies to Defend the Divorce
Under the new no-fault divorce laws in the UK, the courts have fewer legal remedies available to them to prevent a divorce from proceeding. The only defences to divorce now involve legal technicalities based on the validity of the marriage, making it far more difficult to defend a divorce application than it was previously. While this can make the divorce process more efficient, it also means that individuals may have fewer options to contest the divorce if they wish to do so.
Longer Minimum Waiting Period
Under the new no-fault divorce laws in the UK, a minimum waiting period of 20 weeks between the application being issued and being able to apply for the conditional order and a further 6 weeks and 1 day between the conditional order and Final Order. This is a longer period than under the old rules. This may not be suitable for couples who want to finalize their divorce more quickly.
While this is not a direct disadvantage of no fault divorce, processing times by UK courts have increased substantially due to the increase in divorces (which is believed to be as a consequence of the new no-fault divorce), meaning divorcing couples have to wait longer for applications to be processed.
It is important to keep in mind that these pros and cons may not apply in every case and that no-fault divorce may not be the right option for every couple. It is always a good idea to consult with a divorce solicitor to understand your all the options available to you, along with the potential advantages and disadvantages of each.
What was the old UK divorce law?
Commencing divorce proceedings in England and Wales prior to 6 April 2022, the Petitioner, now known as the Applicant, the person submitting the application for the divorce, had to demonstrate that the marriage had irretrievably broken down.
This was done by the petitioner proving one of the five permissible grounds for divorce:
1. Adultery
2. Desertion
3. Unreasonable behaviour
4. Two years separation where both spouses agree to the divorce; and
5. Five years separation where one spouse does not consent to ending the marriage
How has no fault divorce law changed the divorce process in the UK?
Under the new Divorce, Dissolution and Separation Act 2020, there is only one ground for divorce – this being the irrevocable breakdown of marriage. There is no longer a need to allocate blame or wrongdoing to begin the divorce. This means that you cannot contest a divorce unless you are contesting on the grounds of validity of the marriage.
The new system will also allow parties to apply on a joint basis whereas previously only one spouse could apply for a divorce.
The new no fault divorce process still includes the two-stage approach. Firstly, being a Conditional Order (previously known as a Decree Nisi), marking the halfway point in the divorce, and then secondly, the Final Order (previously known as the Decree Absolute), the certificate that the court sends to confirm that the divorce is finalised.
The new rules also apply to the dissolution of civil partnerships.
How do you apply?
If you are a solicitor acting for a sole Applicant for divorce, you MUST use the digital service. If a solicitor is acting for joint applicants (yes, the same solicitor can act for both parties in some circumstances) then the divorce application MUST use the paper application.
If you are a litigant in person, then you can issue your divorce application either on paper or digitally unless the other party is represented in which case you must apply for your divorce digitally.
How long does a no fault divorce take in the UK?
The new no fault divorce laws have changed the timings and procedure of applying for divorce in the UK. No fault divorce proceedings are estimated to take a minimum of 26 weeks to finalise.
As an overview, the general procedure will probably look a bit like this:
• The Applicant will file their application for divorce
• Within 28 days, either the court or the Applicant will have to serve the application for divorce on the Respondent or on both parties if the application for divorce is a joint application
• Within 14 days of the divorce application being served, the Respondent must file their Acknowledgement of Service, confirming that they have received the divorce application and then send this back to the court
• If the Respondent intends on disputing the divorce application (more on this, below), then this has to be done within 35 days.
• Only after 20 weeks from the date of the divorce application being issued can the Applicant make an application for a Conditional Order (the old “Decree Nisi”)
• The Final Order (the old “Decree Absolute”) can only be applied for 6 weeks after the date the conditional order was made
The Final Order shouldn’t be applied for until all financial issues have been resolved.
Can you dispute whether a marriage has broken down?
The Respondent to the divorce – the person receiving the divorce application, cannot dispute that the marriage has broken down. A joint application for divorce cannot be disputed. If you are making a sole applicant application for divorce then the divorce can ONLY be disputed on the basis of jurisdiction, that the marriage has already been legally ended or on the basis of the validity of the marriage. There are no other reasons you can use to dispute a divorce application.
What are the safeguards?
The new no fault divorce law introduces a 20-week “period of reflection” before the divorce becomes final. This acts as a safeguard and aims to provide the spouses with a final period of contemplation, encouraging the couple to work through their difficulties before concluding the divorce process.
