No-fault divorce: How, when and why the law in England and Wales is changing

Luxury London

6 April 2022

Couples are about to gain the ability to divorce without having to attribute blame. It’s hoped the new legislation will make divorces less acrimonious and more dignified. Here’s how the law is changing and what it means in practical terms

6 April 2022 | Luxury London

In partnership with: Stewarts

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rom 6 April 2022, people who are married or in civil partnerships in England and Wales will no longer have to attribute blame or wait at least two years after separation in order to get divorced. The Divorce Dissolution and Separation Act 2020, which comes into effect this month, will introduce ‘no-fault’ divorce, allowing couples to seek a divorce without providing evidence of adultery or unreasonable behaviour. It will also be possible to file for divorce jointly for the first time.

How is divorce law changing?

Previously, a person petitioning for divorce had to apportion blame on their spouse for the irretrievable breakdown of their marriage, or separate from them and wait a minimum of two years to file for divorce (or five years if their partner didn’t consent to the divorce).

Following the law change, there will only be one ground for divorce – the irretrievable breakdown of the marriage. However, a partner will no longer have to evidence the reasons behind that irretrievable breakdown. It is hoped that the new legislation will reduce tension and prevent unnecessary conflict, which can hamper amicable financial settlements and prevent parents from positively co-parenting their children.

“The campaign for a change in the law has been ongoing for decades,” explains Jenny Duggan, a senior associate within Stewarts’ Divorce and Family team. “The Supreme Court case of Owens v Owens in 2018 was the catalyst which really brought the cause to the fore publically and precipitated change and pressure for legislative change.”

The widely-publicised case helped demonstrate the difficulties with a fault-based system. It provided the catalyst for Parliament to reconsider the long-standing campaign for no-fault divorce. In the case of Owens vs Owens, the court dismissed Mrs Owens’ petition for divorce as it considered the 27 particulars of behaviour put forward by her team as not unreasonable enough to prove that the marriage had broken down irretrievably. In the eyes of the court, they were the kind of problems to be expected in a marriage. Mrs Owens was therefore forced to remain married to Mr Owens, and wait five years before she could reapply for divorce.

Even after the new legislation comes into effect, Duggan explains, Mrs Owens, and others like her, will still have to wait five years to file new legal papers. “The change in the law will only apply to new cases, commenced post 6 April 2022. Divorce petitions which have been issued before 6 April 2022 will continue under the ‘old’ law.”

How does a no-fault divorce work?

Going forwards, parties can apply to a court for an order to dissolve a marriage either by way of a joint statement or individually. Unlike previously, it will no longer be possible to challenge the grounds for divorce. “You will no longer be able to contest a divorce application, previously known as a ‘divorce petition’,” says Duggan. “A divorce application can only be disputed on grounds of jurisdiction [which will only be relevant in international cases, where one of the parties seeks to secure the jurisdiction of another country], subsistence or validity of marriage. The statement of irretrievable breakdown is conclusive, which removes the ability to contest as was previously possible.”

Jenny Duggan, Senior Associate, Stewarts

Even if someone is to blame for the breakdown of a marriage, you will not be able to seek advantage during the settlement process by apportioning blame. Says Duggan: “You cannot take the ‘blame route’ once the new laws come into force. The statement of irretrievable breakdown is conclusive and you are no longer required to evidence this by one of the five facts.”

No-fault divorce proceedings will continue to be a separate process from financial remedy proceedings and proceedings regarding the arrangements for children. “However, from a more psychological point of view,” Duggan says, “if the divorce process can commence jointly or without blame, this may well impact positively on the approach taken to negotiating financial settlements and discussions generally regarding child arrangements.

“In simplistic terms, no-fault divorce may well help to reduce some of the animosity that can arise in the context of relationship breakdown and which can infiltrate financial and child arrangements. Overall, I hope this development in the law will lead to a more emotionally intelligent approach to divorce.”

For more information about the new legislation regarding no-fault divorce, please visit Stewarts at stewartslaw.com or call 0207 822 8000