A “No Fault Divorce” in England

Thursday November 18, 2021

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Here, Helen Pidgeon, the Principal of Helen Pidgeon Solicitors, family law specialists in Chiswick, considers when and how a “no fault divorce” is likely to affect divorcing couples in England.

What are the current grounds for starting a divorce?

Provided you meet the criteria to start divorce proceedings in England & Wales, then there is only one ground for a divorce and that is the “irretrievable breakdown” of your marriage.  Irretrievable breakdown is proved in one of five ways:-

  1. your spouse’s adultery with another person of the opposite sex (save in the case of a civil partnership) 
  2. your spouse’s unreasonable behaviour towards you that you can no longer tolerate.
  3. your spouse’s desertion of you.
  4. two years’ separation with your spouse’s consent.
  5. five years’ separation without your spouse’s consent being necessary. 

In 2019, it is reported that the most relied upon fact is the unreasonable behaviour of the spouse receiving the divorce petition, “the respondent” towards the spouse who starts the proceedings, “the petitioner”. Care needs to be given when drafting the examples of this behaviour so that it is sufficient to satisfy the court that the marriage has genuinely broken down. This is finely balanced against maintaining family relationships especially when there are young children involved and the parties still need to negotiate to resolve their finances.  How those examples are worded can have a significant emotional impact on those outcomes. The divorce proceedings are always confidential between the parties and apart from their legal advisers and the court, no-one else sees them.

When can you have a no fault divorce?

When you have been separated for more than two years and provided your spouse consents to the divorce proceedings,  otherwise you will have to wait five years when their consent is no longer required. During this time you can still be living at the same address but you have to show you live separate lives. If you have financial assets that need to be divided, or which you or your spouse can make a claim against, then you should take advice from a tax specialist before deciding upon a date for your separation. 

What about the new “no fault divorce” law?

The new legislation is expected to come into effect on 6 April 2022. The general outline of the new procedure is to allow one spouse, or both spouses together, to make an application to the court for a final order dissolving their marriage with just a statement to the court that the marriage has an “irretrievable breakdown”.  After the application is made, the spouse or spouses, will have to wait a minimum time from start to finish of 26 weeks before the final order is received. There is no longer the requirement to prove the divorce relying upon the five factors set out above. There will still be an opportunity for a spouse receiving the divorce to dispute the validity of the marriage and where there are international spouses, the court’s ability to hear proceedings in this country.

What are the potential risks with the new “no fault divorce” law?

Removing the need to officially blame one spouse for the breakdown of the marriage and giving the power to both spouses to make a joint application (at the same time) to divorce is to be applauded but, there is now the potential risk for one spouse to issue the proceedings with very little time for the other spouse to emotionally prepare themselves or, their finances, before the final order to divorce is made. 

A financially weaker spouse does need to engage in the discussions with their spouse about a divorce, if it is so raised by them, and take legal advice at the earliest opportunity, so a joint application to divorce can be made. They can then be kept fully involved in the process and negotiate on a division of the finances before the next stages to divorce are taken.  This will help to ensure they have as much time as possible to make financial applications to the court for maintenance and to  safeguard pensions before the final order to divorce is received.  

Whilst there is criticism that the current process is too slow, sometimes this is necessary to ensure both parties have the best possible financial outcomes. If the assets are to be divided or claimed against, and one spouse needs financial support, then it is always advisable to have the appropriate legal advice, which can be done in a conciliatory way, before starting the divorce proceedings.  

Helen Pidgeon is a solicitor, mediator and collaborative lawyer and director of Helen Pidgeon Solicitors specialising in all aspects of family law. Do contact us if you require further assistance to help you decide what is right for you and your family. 

References in this article to divorce proceedings also apply to the dissolution of a civil partnership save as otherwise  stated.  

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