Whatever happened to no-fault divorce?
Can you remember before Covid, that there were news stories about a change in the law to no fault divorce?
I, along with many other family lawyers, breathed a sigh of relief when The Divorce, Dissolution and Separation Bill reached the final stages of its parliamentary journey. The Bill is the biggest shake up to divorce in years, it will introduce a new no fault divorce law and is hoped to be in full force by Autumn next year, finally bring divorce into the 21st century.
What is a no-fault divorce?
At present, the sole ground for a divorce is the irretrievable breakdown of the marriage.
In order to prove irretrievable breakdown of the marriage, one of the following five reasons need to be met:
- The other party’s unreasonable behaviour,
- The other party’s adultery,
- The other party’s desertion,
- Two years separation and the other party’s consent to the divorce, or
- Five years separation.
There has been an ongoing campaign for years for no-fault divorce due to the damage that having to apportion blame can cause to separating couples. The new bill means that couples will now only have to state that the marriage has broken down irretrievably and no longer need the consent of their spouse to separate. In fact, couples will be given the option to jointly apply for a divorce where the decision is a mutual one.
The proceedings would still be challengeable but only on certain grounds, such as fraud and coercion. There will be a minimum six-month period between lodging the petition and the divorce being made final to allow the parties to reflect on the decision and provide the opportunity to stop proceedings.
There is a worry that by taking away the “blame” for the reason as to why the marriage has broken down will create an influx in divorces. But quite frankly this is nonsense. All family lawyers I know, do not share this view and hope that it will allow couples to avoid the “blame game” and make separation less contentious and painful for all those involved, especially the children.
Client’s often believe that the reason for the divorce will impact their financial award and this simply isn’t the case. It is human nature to want to someone to face consequences for when they have wronged you, such as in cases of adultery, but this isn’t the approach the Courts take and by removing the “blame” this may help clients focus their minds more on the future rather than the past and on reaching a settlement as quickly as possible.
Resolution campaigned for nearly 30 years for a better way for parties to separate, one which focuses less on litigation and assigning blame and which more on less confrontational methods that allow parties to reach a settlement and prioritising the needs of the children. Hopefully, no fault divorce is a step towards this.
It is hoped that this leads to other areas of reform such as the enforceability of pre and post nuptial agreements and the rights of cohabiting couples.