No-fault divorce & ending the blame game

6 April 2022 brings with it a huge change in divorce legislation in England and Wales that has been campaigned for by family lawyers for many years. The new Divorce, Dissolution and Separation Act 2020 has, after much delay, finally been implemented.

What was the system until 6 April 2022?

Under the old rules you could only apply for a divorce if you could show that the other person in a divorce application had committed adultery, behaved unreasonably, or deserted the marriage. Alternatively, the parties could agree after a 2-year period of separation that they wanted to divorce ‘by consent’ or it was possible to apply, after a wait of 5 years, for a divorce even if the other party disagreed to the divorce. All of this meant that the divorce application process could, at times, be confrontational and created tension when a couple had simply decided that they wanted to end their marriage but felt they have to ‘blame’ their husband/wife to enable a divorce to be processed by the court.

When a relationship ends it is an emotional and difficult time for all involved. So, to have the divorce application process pile additional emotion wasn’t helpful. Elisabeth Sneade, Head of Family at Edmondson Hall says ‘the new no-fault divorce rules mean that people will be able to get divorced without having to blame the other person involved and, if they wish to do so, a joint application can be made to apply for a divorce. This is a huge step-change in how family law works and is a welcome development that better fits society as it is today’.

What is the new system?

There is some new terminology:-

Petitioner is now known as Applicant; Decree Nisi is now a Conditional Order and Decree Absolute is now a Final Order.

One, or both people, can apply for a divorce and all the court need is a statement to confirm the belief that the marriage has broken down. With the old system, the ability to ‘defend’ a divorce often meant that an unreasonable behaviour petition was challenged and increased tension at an already difficult time. With the new system there are only very limited options to defend a divorce if you can show that the marriage was not valid in the first place or the couple involved are already divorced, for example.

There is a minimum of 20 weeks wait from the time that the application is started at court to when the Conditional Order is granted. The 6-week wait to apply for Final Order (as with the old system) remains. The same rules that apply to divorce also apply to civil partnerships and judicial separations. A court order will still be needed to confirm the financial arrangements and if there are issues about the care of children a court order confirming the time children spend with both parents can be obtained.

Both the Law Society’s family law group and Resolution have lobbied hard for a change in the law. The hope is that this new change will bring with it a change in the tone of how family law proceedings are managed both by the people making the applications and the public at large.

Francesca Cann, an Advanced Paralegal within the family law department said, ‘this legislation was first proposed in draft in 2019 and I’m really pleased to see it has been implemented at long last.’

If you would like to discuss this, or any other family law related matter please get in touch with Elisabeth Sneade, Head of Family Law, elisabeth.sneade@edmondsonhall.com or Francesca Cann francesca.cann@edmondsonhall.com for an initial discussion. You can also follow Elisabeth on Twitter @elisabethsneade