No-fault divorce: everything you need to know
Divorce is never an easy decision, but sometimes it's necessary to move forward in life.
Traditionally, divorcing couples needed to satisfy a court that a marriage had broken down by citing one or more ‘facts’ in support of this. These ‘facts’ included adultery, unreasonable behaviour, desertion, separation for two years and consent of both parties, or separation of five years. This meant that people either needed to be separated for at least two years before being able to petition for divorce or one or other party would need to attribute blame to the other party.
Following the introduction of no fault divorce in April 2022, an application for divorce can be made, by one or both spouses jointly, stating that the marriage has irretrievably broken down without the need to attribute blame or wait for a defined period.
If you're considering divorce, it's important to understand what no-fault divorce is, how it works, and what the potential benefits and drawbacks are. In this blog, we'll cover everything you need to know about no-fault divorce.
What is no-fault divorce?
No-fault divorce (also known as no blame divorce) is a legal process that allows couples to end their marriage without having to prove that one party was at fault for the breakdown of the relationship. In England and Wales, until recently, couples had to provide evidence of adultery, unreasonable behaviour, or separation for a minimum of two years in order to obtain a divorce.
However, on 6th April 2022, a new law came into effect in England and Wales allowing for no-fault divorce, making it easier for couples to obtain a divorce without having to assign blame for the breakdown of the relationship. Under the new legislation, couples will only need to provide a statement of irretrievable breakdown, which will be enough to initiate the divorce process.
Divorce mediation can help you and your ex-partner agree on how to split money and property, through the help of a neutral third party.
Importance of a no-fault divorce
The introduction of no-fault divorce has been hailed as a significant step forward in modernising divorce law in the UK, as it is expected to reduce conflict and stress for couples going through the process. It will also enable them to focus on practical matters such as dividing assets and making arrangements for children, rather than on assigning blame.
The new legislation will also introduce a minimum period of 20 weeks from the start of proceedings to the conditional order, providing greater time for people to work together to make practical decisions consequent to a separation.
The process of obtaining a no-fault divorce
The process of obtaining a no-fault divorce in the UK is a relatively straightforward process that can be completed online.
The first step is for one, or both, spouses to complete and file a divorce application with the court. Under the new law, the application only needs to state that the marriage has irretrievably broken down and that there are no plans for reconciliation.
Following an application for divorce by one or both parties to the marriage, there is a 20 week period prior to the conditional order being made. This is an opportunity for parties to work together and decide how assets will be divided and make arrangements for any children, family mediation is often used here. If plans can be made, these can be formalised and made legally binding by way of a consent order application. If the couple is unable to reach an agreement, either party may apply to the court to make a decision on these matters.
Twenty weeks after the divorce application, one or both parties can apply for the conditional order (previously known as the decree nisi for divorce applications submitted before April 6th 2022), which is a provisional divorce order. The final order, previously known as a decree absolute, can be applied for six weeks after the conditional order has been granted. Once the final order has been issued, the divorce is finalised. It might be unwise for a party to remarry if financial settlement hasn’t been reached, as this may disbar them from being able to apply for a financial order in the future.
Pros and cons of no-fault divorce
No-fault divorce has several advantages. One of the most significant benefits is that it removes the need to assign blame to one party or the other, making the separation process less stressful and reducing the likelihood of lengthy legal battles.
This was advocated by Baroness Hale, the former President of the Supreme Court, who highlighted that no-fault divorce allows for separation without holding either party accountable.
Moreover, the no-fault divorce eliminates tension and stress that children may face when their parents separate. It allows both parties to focus on negotiation of important factors involved in separation without having to look for faults in the relationship. This can also help parties agree on the process involved in caring for their children, which benefits both the separating parties and their children.
Another advantage of no-fault divorce is that it may help individuals stuck in abusive and controlling relationships to leave their partners. The previous law allowed abusive partners to contest the divorce, which kept the victim in the relationship. With the no-fault divorce, the victim can leave the relationship without having to make allegations about the abuser, making it easier to get out of the relationship.
However, some people argue against no-fault divorce, stating that it makes divorce an easy option for couples struggling in their relationship, rather than encouraging them to work through tough times. Others claim that it removes the significance of marriage in society, leading to more 'broken' families.
The impact of no-fault divorce on children and families
No-fault divorce is arguably better for families and children. The old fault based divorce process introduced potential conflict into a couple’s divorce right from the start. This was incredibly unhelpful for couples who wanted to divorce in an amicable way.
The new divorce law supports mediation in that it recognises that nobody reaches the decision to divorce without a lot of anguished soul-searching and that the process shouldn’t cause even more distress. It also introduces the idea that the divorce can be a collaborative process, giving spouses the opportunity to apply together for a divorce.
No-fault divorce in the UK has been implemented to make the process of divorce less confrontational, quicker and less stressful for everyone involved. However, it's important to recognise that divorce can still have a significant impact on children and families, regardless of whether it is a no-fault or fault-based divorce.
The impact of divorce on children will depend on various factors, including their age, their relationship with their parents, and the level of conflict between their parents. In some cases, no-fault divorce may be less harmful to children because it can reduce the level of acrimony and conflict between parents. For example, if parents are able to reach a settlement agreement more quickly and amicably through mediation, this could minimise the impact of the divorce on their children.
Additionally, the impact of no-fault divorce on families could depend on the quality and accessibility of support services available to them during and after the divorce process. This includes counselling services for children and parents, as well as legal and financial support to help families navigate the complexities of divorce settlements.
The role of mediation
Mediation is a form of alternative dispute resolution in which a neutral third-party mediator helps couples in conflict to resolve their disputes and reach a mutually agreed-upon resolution. In the context of a no-fault divorce, mediation can be a useful tool to help couples resolve their differences in a collaborative, non-adversarial manner.
During mediation, the mediator works with both parties to identify issues and helps them to explore possible solutions. The mediator does not make decisions for the parties, but instead, facilitates communication and negotiation between them, helping them to find common ground and reach a resolution that satisfies both parties.
Mediation can be particularly useful in no-fault divorces because it allows couples to avoid the time, expense, and emotional stress of going to court. It also allows couples to maintain greater control over the outcome of their divorce, rather than leaving the decision-making process up to a judge. Additionally, mediation can help couples to improve communication and rebuild trust, which can be beneficial for their ongoing relationship as co-parents or in other capacities.
If you're considering a no-fault divorce, choosing to prioritise mediation can be a wise decision. Mediation offers a less adversarial and more cooperative approach to divorce, and can help couples find mutually acceptable solutions that benefit everyone involved.
At Mediation First, we offer a variety of online mediation services including family & divorce mediation, child mediation, workplace mediation and more. With the assistance of our experienced mediators, you can engage in guided conversations with your partner to work towards an amicable resolution.
Our services are tailored to meet your specific needs, and we are committed to helping you find a positive and productive path forward.