No fault divorce: a practical guide for divorcing couples

It’s not a pleasant subject, but knowing the new rules might be a necessary evil, especially for working fathers. We asked lawyer Paul Linsell to break it down for us.

no fault divorce guide

 

No fault divorce, which came into force last week, is the biggest change in divorce law for nearly 50 years.

There are a number of changes to divorce law in England and Wales that flow from the new legislation.

No fault divorce

The headline change is the introduction of ‘no fault divorce’. In fact, no fault divorce has existed since the 1970s, but in order to divorce without fault it was previously necessary to both agree to a divorce and have been separated for two years or to prove separation for five years if there was no agreement. Previously, if a couple wanted to divorce within two years, a divorce had to be based on adultery, unreasonable behaviour or desertion.

The new law abolishes any need to prove the breakdown of the marriage. Instead, it will be possible to simply make a statement that you consider the marriage to have broken down irretrievably.

Removing the ability to defend a divorce

While it will still be possible to challenge a divorce application, it will no longer be possible to defend it on the basis of not agreeing with the reasons for a divorce or not accepting that the marriage has irretrievably broken down. The only basis for challenging a divorce under the new law will be for reasons of fraud, procedural non-compliance, questioning the validity of the marriage or there being a lack of jurisdiction (i.e., the English court not being able to deal with the divorce).

Joint divorce

The new law will enable a separating couple to divorce together; something which has never been possible before It will also remain possible for either party to make a sole application under the new law.

Simpler terminology

Outdated terminology is being replaced with newer, user-friendly, language. Examples include:

  • A divorce petition will become a divorce application
  • The petitioner will become the applicant
  • The decree nisi will become the conditional divorce order
  • The decree absolute will become the final divorce order

A new period of reflection

The new law introduces a minimum period of 20 weeks between the date the divorce application is issued by the court and when the applicant(s) can apply for the conditional order. The six week minimum period between conditional order (previously decree nisi) and final order (previously decree absolute) is retained, meaning there is a minimum timeframe of 26 weeks for a divorce to go from start to finish.

What do these changes mean in practice?

Generally, the changes to the law should make it easier to navigate the obtaining of a divorce and enable couples to do so in a less adversarial manner.

Divorcing couples will no longer waste time, money and energy arguing over how a divorce will proceed, who will apply, who will pay for it or the basis upon which a divorce is sought.

The fear of a defended divorce will be removed. In the past this has presented a significant problem for some people wishing to exit a marriage, particularly those subjected to abusive controlling behaviour or where there was a significant imbalance in financial power in the marriage. The new law sweeps this away and truly allows for anyone in a marriage to have the freedom to leave it as they may choose.

It is less likely that there will be a need to use a solicitor for the divorce itself. With the simplified process, clearer language and the established online divorce portal available, it is widely anticipated that more people than ever before will look to handle their divorce themselves. While this is encouraged, there are some potential pitfalls to be aware of.

It is hoped that removing the need to apportion blame will allow divorcing couples to take a more future-focused approach to their separation, working together in a constructive manner to untangle all issues they face. This should help reduce conflict and allow for more couples to divorce in a dignified manner, without the need for contested processes.

It is widely expected that the ability to divorce jointly will see more couples turn to mediation and other out-of-court processes to sort out issues concerning children or finances. Again, working together to resolve issues.

digital divorce dads

While the changes to the law are welcomed enthusiastically by most family law practitioners, there are some elements for concern:

A failure to properly deal with the true issues on divorce

The reality is that the divorce process will be (and usually was under the old law) the easy part of the process – it is simply an exercise of reversing the legal relationship created on marriage. The significantly more challenging issues will still be addressing the arrangements for any children and agreeing how to deal with the finances of the marriage. These are separate processes to the divorce itself.

Many divorcing couples may not realise that finalising a divorce does not address the financial claims that arose as a result of the marriage. There is a need to obtain a separate court order to deal with financial matters with certainty. If this is not addressed at the time of the divorce, many couples could see themselves dealing with financial claims later down the line when they can be even more complex.

A greater risk that couples will run into difficulties by dealing with the divorce themselves

The risk of failing to deal with the finances is heightened if couples are not seeking proper professional assistance. They may also run into difficulties by progressing matters inappropriately within the divorce itself: for example, by completing forms incorrectly or progressing with obtaining a final divorce order prematurely. The latter point causing potentially catastrophic consequences if done before the finances of the marriage have been properly dealt with.

There can still be a significance to who applies for the divorce

The new law is in some ways slightly more complex in that it now offers a choice of a sole application or a joint application. It is important to get this choice right as there can be consequences either way. For example:

  • If the process commences as a joint application but one party then fails to co-operate later in the process then there can be procedural delays and built in timetabling delays that make the process take longer.
  • If the process commences as a sole application, there is no ability to convert to a joint application. This is particularly important for the respondent as it means that if the applicant fails to apply for the conditional order after 20 weeks elapse their only way to progress is to cross-apply for a divorce and start the process again. They would then face a further 20-week wait.

Both of these issues can potentially be alleviated by way of undertakings, something which a solicitor can manage if there are concerns.

For some, the inability to apportion blame may lead to feelings of frustration  

While the move away from the ‘blame game’ is widely seen as a positive step in helping divorcing couples, it cannot ignore the reality that many people will still blame their spouse for the marital breakdown. Indeed, for some, the old divorce process provided a cathartic process for letting out those frustrations within the formal court arena; albeit the reality being it made little or no difference to the outcome. There is a risk that with this outlet effectively plugged, by no fault divorce being introduced, the frustrations may instead creep into issues concerning the children or finances. It is hoped this will be an exception rather than the rule, but couples should attempt to avoid the risk of this by seeking therapeutic support to manage the emotional aspects of the divorce.

Ultimately, while the change in the law is very welcome, the simple message must continue to be to seek proper advice as early as possible. Many solicitors will now be signposting you to deal with matters in a different way; such that you obtain all the advantages the new law will bring, but with the added security of trusted advisors guiding you through all that you need to deal with and not just the divorce itself.

Paul Linsell is a partner and head of family law at Boyes Turner.

Read more:

A guide to digital divorce for working dads

HR urged to do more for working dads hit by divorce grief





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