No Fault Divorce – the Good, the Bad, and the Neutral
People considering divorce are often surprised to hear that, in most circumstances, there will need to be an element of ‘blame’ to begin proceedings immediately.
The current legislation says that a marriage will only be dissolved on its ‘irretrievable breakdown’, which must be evidenced with one of five facts
1. Unreasonable behaviour – assigns blame
2. Adultery – assigns blame
3. Desertion – very rare and now archaic
4. Two years’ separation with consent – does not assign blame but stops
the divorcing couple moving forward
5. Five years’ separation (no consent needed) – does not assign blame
but more time in limbo.
Many people wanting to divorce want the change to happen as soon as possible and to get through that time of their life in as pain-free a manner as possible. Practitioners and campaigners have been calling for no-fault divorce for many years and it is set to soon become a reality. But what does it actually mean and what are the consequences?
What’s happening?
There is to be a reform to the law on the breakdown of marriages for the first time since 1973. Splitting couples will no longer need to evidence the ‘irretrievable breakdown’ of the marriage but can, instead, just give a statement to the court to say that the marriage has broken down irretrievably – there is no need to pick one of the five factors above. Couples will also be able to jointly petition for divorce for the first time. The new law is due to come into place in April 2022, though it was initially scheduled for June 2021.
The Good
- Less hostility – this helps avoid souring relations between the divorcing couple. Often there are financial matters to sort out and children to co-parent. Splitting up is never pleasant but it can be achieved amicably and no-fault divorce is likely to help this.
- Less likely to end up in court – currently, divorces can be contested and this can lead to very expensive and protracted proceedings. Fortunately, this is rare but the risk is removed with no-fault divorce except in exceptional circumstances.
- More cost-effective – there will need to be less correspondence between solicitors attempting to agree a divorce petition that is palatable to both people. This will save costs.
The Bad
- Some people fear that this amendment to the law will make it too easy to get divorced and it detracts from the sanctity of marriage. This is combatted by a minimum timescale of 6 months from submission to final order.
- It is not clear whether the government will be ready for the law to come into effect in April 2022 so anyone waiting for the introduction of no-fault divorce cannot be certain of when they can divorce.
And the…Neutral
- People seeking legal advice on divorce often assume that assigning blame to one party will give them an advantage when sorting out their finances. This is very rarely the case so the introduction of no-fault divorce will not make a difference.
If you are thinking about divorce and want to discuss your options, including whether it’s beneficial to wait for the new rules to come into force, please do not hesitate to contact us at McAlister Family Law
