No-fault divorce is here: what you need to know

Expert Insights

The long-awaited ‘no-fault’ divorce is finally here, becoming legislation on Wednesday (6 April). It has taken years of discussion to reach this point, providing significant changes to the way couples apply for a legal separation.

Known as the Divorce, Dissolution and Separation Act 2020, this landmark legislation will allow married couples to divorce without assigning blame. Up until this point, couples had to have been separated for at least two years, or have proof of their partner being at fault.

Helen Bowns, partner and head of the family team at law firm Shakespeare Martineau said:

“England and Wales have been a step behind many other countries when it comes to divorce, clinging to tradition rather than opting for a more progressive approach. 6 April marks an important turning point, enabling couples to separate without playing the blame game.”

Couples will also be able to apply for divorce jointly. At present, one spouse must issue divorce proceedings against the other, potentially creating unnecessary animosity.

This approach can even lead to the divorce being contested by the other spouse. Under the no-fault divorce system, it will not be possible to contest a divorce, putting an end to traumatic situations such as the Owens v Owens case, where Mrs Owens was denied a ‘fault’ divorce and had to wait five years before starting proceedings.

Helen added:

“Ending a marriage is already a stressful decision, and for couples who have reached it mutually and civilly, it can be upsetting to choose who the proceedings will be made against. Applying jointly will remove this unnecessary formality and lessen the chance of blame creeping into the equation.

“Cases such as Owens v Owens are rare, but they shouldn’t be able to happen. Removing the option to contest a divorce is a vital step forward, stopping people from being trapped in a marriage that they no longer want to be part of.”

A statutory timeframe has been included in the new legislation, meaning that a divorce cannot be finalised in less than 20 weeks. Under current law, it is possible to conclude a divorce in a shorter time frame than this, however it's rare for this to happen in less than four months.

Helen said:

“While a statutory timeframe will be in place, we mustn’t forget that the complexities that can arise from a tumultuous divorce can add significant time onto the process. Whether they are financial claims that require negotiation, or concerns around child custody, the more heated a divorce, the longer it can take to agree. In the grand scheme of things, 20 weeks is not long.”

Divorce terminology has also been judged to be outdated, so this is being brought up to date. For example, the person applying for the divorce will be called the applicant, rather than the petitioner. As well as this, the decree nisi will become the conditional order and the decree absolute will be known as the final order.

Helen commented:

“These terminology changes may seem minor, but they bring the divorce process into the 21st century. People don’t want to be translating Latin phrases when coming to terms with the end of their marriage. Making each element of divorce as clear as possible will reduce confusion and help people to understand the process they’re going through more easily.

“The Divorce, Dissolution and Separation Act 2020 aims to bring some peace to an often fraught situation. It is here to make divorce easier for those that want it. This doesn’t mean there will be a sudden flurry of divorces, but it does mean there will be less built on blame and anger, benefitting all involved.”

For more information about how the family team at Shakespeare Martineau can help you, get in touch.