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No fault divorce: what is it?

View profile for Laura Cotton
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The first working day of January is usually referred to as ‘Divorce Day’. This is because, historically family solicitors receive the greatest number of enquiries about starting divorce proceedings. This year, however, there is speculation that ‘Divorce Day’ will be pushed back to April, when Solicitors will see a greater surge of enquiries to normal.  

A new law surrounding divorce is to be introduced on 6th April 2022. Currently, if someone wishes to file for divorce, they must prove that the marriage has irretrievably broken down, and must rely on one of five facts, two of which are fault based. The five facts are: -

  1. Adultery
  2. Unreasonable Behaviour
  3. Desertion
  4. Separation for 2 years with consent
  5. Separation for 5 years

The most relied upon fact is Unreasonable Behaviour, which requires the spouse who is applying (the Petitioner) to list examples of the other spouse’s (the Respondent) unreasonable behaviour. This can often create hostility between the parties and turn what could be an amicable divorce into an acrimonious one.. More information on the current divorce procedure can be found here.  

The new law will result in the Petitioner simply needing to state that the marriage has irretrievably broken down, with no explanation or evidence of the breakdown of the marriage being  necessary. From April 2022, It will no longer be possible to raise allegations of adultery, desertion or unreasonable behaviour, which, it is envisaged will result in more civilised and dignified proceedings for both parties and therefore better outcomes for families.

Currently, the Respondent has the option to defend the divorce and dispute a ‘fact’, which again can result in acrimony and have cost implications and cause  delay. This will no longer be possible, and the statement of irretrievable breakdown is to be taken as conclusive evidence that the marriage or civil partnership has broken down irretrievably. The divorce is still able to be challenged, but only for limited reasons such as jurisdiction, fraud, and procedural compliance.

The new law will also introduce the option for there to be a joint application by both spouses, providing them with a choice to cooperate from the outset.

There will be a new minimum timeframe of six months from the start of proceedings to the end. Due to the removal of the requirement of proving one of the five facts, this new time frame will ensure that the decision to  divorce is one that has been considered carefully.

Much of the terminology will be altered with the change in procedure, to make it more accessible and easier to understand.

Johnson Astills offer First Fixed Fee appointments in relation to all matters to provide you with more information and guidance. More details can be found here. We also offer a fixed fee package for divorce matters, which can be found here.

If you are thinking about divorce proceedings or need assistance with current proceedings, please do not hesitate to contact Johnson Astills to discuss your queries with one of the specialists in our Family Law Department.