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Alice Blackmore of Goughs

No-fault divorce: Your questions answered

April 2022 marks an important moment in family law following the 12-week public consultation which showed widespread support for the implementation of no-fault divorce.

According to Resolution, 71 per cent of those polled agreed that no-fault divorce is urgently needed to protect the long-term interests of children.

Ministers announced on 7 June 2021 that the Divorce, Dissolution and Separation Act 2020 will come into force on 6 April 2022.

The bill which gained Royal assent on 26 Jun 2020 ends years of campaigning to remove the need to blame one of the parties when seeking to divorce – now allowing ‘no-fault’ divorce.

Couples will no longer have to prove that their partner is at fault before ending the marriage.

The government proposes to remove the ability of a spouse to contest the divorce in court and separated couples will now be able to rely on the irretrievable breakdown of the marriage as the sole ground for divorce without having to make inflammatory allegations allowing for a more constructive approach to separation.

What is no-fault divorce?

No-fault divorce will allow parties to mutually agree that the marriage has broken down and issue proceedings without blaming the other party.

Currently, if couples have not been separated for a period of two years or more, one party must rely on adultery or behaviour, therefore encouraging one party to blame the other.

The introduction of no-fault divorce will take away the blame that can cause so many added difficulties when parties separate.

The need or want to create blame often creates an unnecessary distraction for many couples who are engaged in the divorce process and can create unnecessary animosity.

Removing blame should encourage parties to avoid unnecessary conflict and promote positive ongoing relationships between them and for the benefit of any children.

No-fault divorce is a significant step forward to encouraging parties to focus on a less confrontational, non-litigious way of reaching a financial settlement and discussing arrangements for children.

What are the key differences?

Under the new system separating couples can apply for divorce on a sole or joint basis.

By allowing for parties to apply on a joint basis one party will no longer be ‘divorcing the other’ and formalising the separation can be viewed as a more mutual and amicable process.

Alternatively, one party can apply if the other does not agree to the divorce, but the party in disagreement will not be able to defend the proceedings.

This is therefore a welcome change and, in most cases, will cause less stress and costs and the worry about attending a court hearing. However, individuals should seek advice if there are issues concerning the validity of the marriage jurisdiction because some legal challenges may still apply.

There will be a 20-week timescale between the issue of the divorce petition and the first stage of the divorce – the conditional order – to provide a reflection period and a six-week timescale between conditional order and final order, which formally brings the marriage to an end.

The process will therefore take a minimum of six months and will not be quicker than the current system despite being more streamlined.

However, this is important because there are many other aspects that it is important to think about when separating and the period of reflection will allow divorcing couples not only to consider any possible reconciliation but also time to address those other issues.

In the event a couple does want to reconcile there will be the ability to withdraw the petition at any time, something which under the current system is complicated and potentially expensive.

There will be no changes to court fees.

What else do I need to think about?

No-fault divorce is undoubtedly a significant step for separating couples and reflects the biggest changes to the divorce system since 1973.

However, whilst the focus on a more amicable and streamlined divorce process is welcomed it is extremely important for separating couples not to overlook other matters, particularly finances.

In principle, the process of securing a financial settlement is separate to the divorce process and therefore the new system should not automatically change the likelihood of a fair financial settlement being achieved.

The period of reflection affords parties time to focus on reaching a fair financial settlement and the importance of this cannot be underestimated.

Similarly, separating couples need to discuss and seek to agree the arrangements for any children moving forward and perhaps consider setting those arrangements out in a parenting plan.

There are many factors that couples need to consider before commencing divorce proceedings and it is important to take specialist advice.

Alice Blackmore is an associate solicitor at the Chippenham office of Goughs Solicitors. She can be contacted at info@goughs.co.uk or on 01249 444499

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