No Fault Divorce Goes Live

After years of campaigning, the no-fault divorce system goes live on the 6 April 2022, entirely overhauling the current system which has been in place since 1969 and bringing England and Wales in line with Scotland, most of Europe and the USA.

The current system requires separating couples to prove that their relationship has irretrievably broken down and to demonstrate this they must rely on one of five facts. Three of these facts are conduct-related and therefore intrinsically fault-based (unreasonable behaviour, adultery, and desertion).  The other two facts are based on the length of time that couples have been separated – two years with consent of the other spouse and five years without consent.

Although it has been the subject of campaigning for years, the real momentum for these changes came following the 2018 Supreme Court case of Owens v Owens in which Tini Owens was prevented from divorcing her husband on the basis of ‘unreasonable behaviour’.

Under the new changes brought in by the Divorce, Dissolution and Separation Act 2020 individuals wishing to divorce their spouse will still need to rely on the irretrievable breakdown of the marriage but they will no longer need to rely on one of the five facts detailed above (three of which are fault based).

Applications for divorce will also now be able to be made by one party or jointly.  The idea being that joint applications for divorce encourage co-operation between the parties from the outset.  Divorces can also no longer be defended save for in respect of technical points such as jurisdiction. The default service position will be by email, bringing divorce up to speed with other technological changes of the last half a century.

Despite the many welcome changes, there are also many criticisms of the new system.  Fundamentally one cannot now oppose a divorce unless relying on very narrow circumstances as detailed above as the system will now be entirely non fault based.  Does this prevent some parties from altering the power imbalance which was the crux of the issues within the marriage? Divorces will also now always take a minimum of thirty weeks, double the current time.  Partly because individuals will have to confirm their intention to divorce three times.  Under the current system a divorce could have been obtained in three months.  No more ‘quickie divorces’!

There has been further criticism as the court fee remains at £593 despite a streamlined online system. The ability of the court to make costs orders is now limited unless there have been particular difficulties, for example in relation to service.

The new changes outlined above also apply to the dissolution of civil partnerships.

If you would like specialist advice in respect of your divorce or separation, or have any questions about what this change could mean for you, please contact Carol EllinasLouise Barretto, Lucy Hoare or Andrew Miles from our family department who will be happy to assist.  We are of course also able to advise on alternatives to divorce and put you in touch with other professionals at an early stage, to assist.