It’s not you, or me: no-fault divorce, one year on

Insight

17.05.2023

There were 12,978 digital divorce applications in April 2022, compared with 6,764 in April 2021. The increase came with the long-anticipated introduction of "no-fault" divorce, which came into force via the Divorce, Dissolution and Separation Act 2020 on 6 April 2022.

Thousands of couples were waiting for the introduction of the new system before filing for divorce. And why not? It was universally agreed that the in-built “blame game”, formerly central to the initiation of proceedings, served only to unnecessarily escalate acrimony.

The key changes in April 2022 were as follows:

Under the old law a divorce applicant had to allege fault (most commonly adultery or unreasonable behaviour), or evidence of separation (either two or five years, depending on whether it was agreed that there should be a divorce). The new application process, however, requires only a statement from one spouse that the marriage has irretrievably broken down, and it is no longer possible for any element of blame to be included as part of the divorce process.
The new law removed the possibility of a respondent defending the divorce. One spouse’s statement of irretrievable breakdown of the marriage will be taken as conclusive evidence of the fact that the marriage has irretrievably broken down. The only possible bases for challenging the divorce are now that the court does not have jurisdiction or there has been some form of procedural irregularity.
There is now the option of a joint application for divorce. This is completely new and gives couples the option of applying for divorce together, enabling a cooperative approach from the outset.

A year on, there has been a noticeable positive impact on clients. Joint applications are common and foster a spirit of mutual agreement through the divorce process. We no longer need to spend time dealing with the basis for divorce and can focus instead on resolving the key issues for our clients relating to their children or finances.

Many commentators say this change was long overdue. It has brought the law of England and Wales into line with wider family law principles and the constructive approach of family practitioners in pursuing best outcomes for clients and their children. It also aligned us with jurisdictions like France, Germany and Australia, where no-fault divorce has been in place since the 1970s.

Other jurisdictions are making similar legislative changes. In February 2023 the UAE introduced a similar no-fault system for non-Muslim residents, where previously they would have had to divorce under Sharia law. Maryland is considering a similar legal change, to join the other 39 US states where no-fault divorce is in place.

The positive impact of the new system does come with a small health warning. The divorce process itself does not resolve all issues between divorcing spouses, and there may well be arrangements for children and financial matters to resolve. One of the concerns with no-fault divorce is that, combined with the advent of the online divorce platform, the divorce process seems so straightforward that individuals progress the divorce without taking legal advice. However, it is crucial that both spouses receive legal advice on financial matters to ensure that important assets, such as pensions, are properly considered. Even where a couple has agreed financial arrangements, a court order must be obtained formalising those arrangements. Both spouses have financial claims against one another upon divorce, and if those claims are not properly dealt with in a court order at the time of the divorce, they could be revived many years down the line.

Overall, there is no doubt that the introduction of no-fault divorce has been a positive step for our clients. Although there are still difficult issues to resolve relating to both children and financial matters, the reduction of acrimony at the outset of the process encourages cooperation between separating spouses which in turn can help to reduce the time and costs resolving those issues.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.