‘No fault’ divorce – what does it mean and what are potential pitfalls of the new divorce procedure?

From 6 April 2022 the Divorce, Dissolution and Separation Act 2020 will come into force – introducing the so called ‘no fault divorce’ in England and Wales. The new law will apply to Civil Partnerships as well as to marriages. However, to simplify this piece, I will refer to no fault in the context of a divorce throughout.

Currently, people in the UK who want to divorce must show that their marriage has irretrievably broken down and can do so by relying on one of the following facts in support:

  1. Adultery
  2. Desertion
  3. Unreasonable behaviour
  4. Two years separation with consent
  5. Five years separation

For people who do not wish to wait for a period of separation of at least two years, their only alternative option is to blame their spouse for the breakdown of the marriage by relying on their spouse’s desertion (albeit very rarely used nowadays), adultery or unreasonable behaviour. These are known as ‘fault’ or ‘instant’ petitions. The most common fact in support for divorces in England and Wales is ‘unreasonable behaviour’. However, this causes a number of issues, not least because the blame-based system leads to animosity between the parties which is often detrimental when negotiating financial settlements or child arrangements. Some Petitioners would also have to exaggerate the behaviour of their spouses to meet the threshold for unreasonable behaviour, which can lead to delays in the divorce suit due to the other party not accepting blame.

The ‘no fault’ divorce is therefore very welcomed by practitioners and the public alike to reform a divorce system which has long been criticised for being outdated, unsatisfactory and unnecessarily adversarial. However, the new legislation is not free from criticisms.

What changes does the new law bring into force?

From 6 April 2022, people who want to divorce no longer have to rely on any facts to prove that the marriage has irretrievably broken down.

Under the new system, the irretrievable breakdown of the marriage is alleged when the petition is presented – and not, as per the current law, confirmed when the application for decree nisi is made (after the facts relied upon by the Petitioner have been admitted or proven).

The divorce petition is therefore only a unilateral declaration by one party that the marriage has irretrievably broken down and, at the expiry of the notice period, such declaration will be enforced by way of a conditional order. The Respondent will have no say in the Petitioner’s decision which seems arbitrary and may yield unfair outcomes.

The new law provides that 20 weeks after the petition has been issued, the Petitioner can apply for a conditional order, presuming that the Respondent has been given notice of the petition. 6 weeks after the conditional order has been granted, the Petitioner or both, can apply for the final order. Crucially, the Respondent cannot oppose either orders unless under very narrow statutory provisions.

Essentially, if one party wants to get out of the marriage because they believe it has irretrievably broken down, they will be able to do that quickly and without needing the cooperation of the other.

Another major change brought by the new law is that a divorce petition can be presented by both parties, should they wish to and either party can apply for the final order six weeks after the conditional order is granted. However, it is unclear at this stage (and unlikely) whether both parties can be represented by the same solicitors. This would present enormous difficulties for solicitors if, when acting for both parties, one party decided they no longer wanted to proceed with the divorce, given that the other party can still proceed with the divorce without their spouse’s consent.

What are the potential pitfalls of the new divorce law?

Under the new law, the Petitioner must serve the petition to the Respondent within 28 days from issuing. Therefore, the Respondent who is not served for 28 days will find themselves in a position whereby the conditional order is just 16 weeks’ away and they have only just learned of their proposed divorce.

A Petitioner could seek an extension of time for serving the petition on the Respondent in circumstances where the Petitioner has ‘good reason’ to delay service, thus reducing the time frame for the Respondent even further. What constitutes ‘good reasons’ has not been defined by the legislator and will be assessed on a case-by-case basis.

The Law Society raised concerns about the commencement of the 20-week period and proposed amendments to the legislative Bill, its position being that ‘the notice period should begin from the date of service when it can be demonstrated that the Respondent has had, or can be considered to have had, formal receipt of notice’. The Law Society’s position being that both parties should have 20 weeks’ notice of the petition in sole petition cases to avoid late service (possibly at 15 or 16 weeks) and then the Respondent having just 4 or 5 weeks until the conditional order is made.

The reasons given by Parliament for the no notice period in the law were as follows:

  • To protect victims of domestic abuse who would not have to worry for a whole period of 20 weeks about giving notice to their spouses of having applied for divorce, and
  • To reduce the likelihood of dispute of foreign forum – if the Petitioner thinks that the Respondent is going to dispute the jurisdiction of England and Wales for the divorce, the Petitioner will serve their petition late and the Respondent would then be in difficulties to defend the application in these circumstances.

The ability of the Petitioner to provide very little notice may cause significant distress to Respondents when they find out a couple of months before the final order for the divorce that their spouse has been sitting on an issued application for divorce for several months. A further disadvantage for Respondents if service is delayed, is that they may not have sufficient time to oppose the jurisdiction of England and Wales before the final order is made.

The issue of when the notice period should begin has been referred to the Family procedure Rules Committee (FPRC).

Furthermore, the legislation does not have any provision allowing the Respondent to request a delay of the final order until a financial settlement is reached if this causes them a financial prejudice. In cases where one party seeks a pension sharing order in their favour, they would benefit from delaying the decree absolute until after the finances are settled because a death before the pension sharing order is in effect but after the final order is pronounced, would cause significant difficulties when implementing a pension sharing order. The Law Society also raised their concerns about this provision. The current situation is that practitioners usually as a matter of good practice await the approval of a financial remedy order before applying for decree absolute (which will be the final order) but the Law Society proposed that legislation should be introduced to enforce this approach thus protecting clients still further. The FPRC are also tasked with considering this aspect of the legislation.

Those promoting the legislation, were seeking a change in the law to allow the Respondent to delay the decree absolute if there is a financial prejudice to them. However, the law on this point is unchanged and case law makes it clear that it is only in exceptional circumstances that a decree absolute can be delayed.

In conclusion, the new law is mostly welcomed for bringing into force changes to the divorce system which were long awaited and now allow people who have simply fallen out of love to divorce without having to wait a period of separation of at least 2 years or without having to blame their spouses. However, the new system is undoubtedly advantageous for Petitioners who will benefit from delaying service of the petition if they are the financially stronger party and creates significant consequences for a Respondent in financial litigation.

Practitioners are going to find more and more situations of clients presenting themselves to them as already divorced having had no legal advice whatsoever which may well affect practitioners’ abilities to protect their clients’ financial interests.

Further still, the insufficient notice of the proceedings for the Respondent is likely to detrimentally affect parents’ co-parenting arrangements if the Respondent finds out the Petitioner has issued a divorce application several months ago without their knowledge.

This new legislation puts the control of the divorce proceedings firmly in the hands of the Petitioner as opposed to what we had hoped would be a more joined up process. Time will tell how this plays out but the chances of unfairness and financial consequences for the Respondent are substantial.

If you need advice on divorce, please contact Martina D’Avino on 020 3005 2712 or email [email protected].