What is no-fault divorce and how will it affect couples seeking a separation?
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Natalie Lester, a senior family lawyer at Debenhams Ottaway in St Albans, explains how the new rules for divorce can make separating from your spouse easier and answers some of your most common questions.
Q: What are the current grounds for divorce?
A: At the moment in England and Wales, there is one ground for divorce – the irretrievable breakdown of a marriage. The petitioner (person seeking the divorce) must then cite one of five facts to support this claim:
- unreasonable behaviour
- desertion for more than two years
- separated for two years and both agree to a divorce
- separated for five years, even if one party disagrees.
Unreasonable behaviour requires you to prove that your spouse’s behaviour during your marriage has been so unreasonable that you cannot be expected to continue to live with them.
In an acrimonious divorce, this does not encourage a constructive approach or a good starting point for a couple to begin negotiations on other matters such as finances and children. In an amicable divorce, a couple has to agree examples of their spouse’s behaviour, even when they do not want to.
Q: What is no-fault divorce and why are divorce laws changing?
A: No-fault divorce is new law in England and Wales, designed to make it easier for couples seeking a divorce to get one, without needing to lay blame at their spouse’s door.
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Family lawyers have sought a reform to the UK’s marriage laws for many years and fully support no-fault divorce. These new changes mean it will be easier for couples to focus on making important decisions, save them from entering the blame game and make the divorce process less stressful for them and their families.
Not every marriage ends because of adultery or other unreasonable behaviour – sometimes a couple may just fall out of love or they have experienced trauma they cannot overcome. No-fault divorce better reflects these circumstances and suits modern society’s compassionate attitude and understanding towards relationships and marriage.
Q: When will the new laws be introduced and how will they affect divorce proceedings?
A: These changes are due to be introduced on 6 April, 2022. The new no-fault divorce system will allow couples to cite an irretrievable breakdown of the marriage without having to rely on one of the five facts and without the need to imply fault.
Another big change is that the other party will no longer be able to contest the divorce (unless there are procedural issues which should be rare). This will help to prevent divorces from being dragged out and life being made more difficult for one spouse by the other.
If you want to apply for no-fault divorce, you can do this solely or jointly online, or you can ask a family lawyer to draft the documents for you to make the process easier.
Q: How long will the divorce process take?
A: The process of legal separation will take a minimum of 26 weeks. Once you have made your application, you will have a 20-week cooling-off period before receiving your conditional order. It will then take a further six weeks for the decree absolute (which will be known as the final divorce order).
However, the process is likely to take longer than this due to the backlog in court caused from Covid-19 and their general resources being stretched. This is just the timescale for the divorce itself, and sometimes it can take up to a year or so to resolve the finances and any potential children matters.
Q: What are the most commonly asked questions about divorce?
A: The most common question I get asked is ‘What will I be entitled to financially if I get divorced?’ This is a tricky question to answer right away as we usually do not have a complete picture of all the assets/income and it differs from case to case.
At Debenhams Ottaway, we take the time to understand your situation and help you gather the relevant documents to find out what assets you and your spouse own. Once disclosure has been exchanged with your spouse, we can then begin to offer advice on how best to share it out. We can also advise on whether any experts may be required, such as to value assets or pension sharing.
You will also need to decide what happens to the family home and if you have children, you will need to make decisions about how to divide the finances to ensure they are fully provided for. Both incomes will also be looked at to see whether maintenance is required.
Divorce doesn’t end financial claims, which is why it’s best to get help from a family law specialist to make sure you are aware of what you need to do to reach a financial settlement.
Q: Are there alternatives to going to court?
A: Yes. Wherever possible, we encourage clients to have constructive discussions with their spouse and explore alternative dispute resolution methods such as mediation. There is also arbitration which is faster, more flexible and cost effective than going to court.
If you are considering getting divorced, the family law team at Debenhams Ottaway can offer guidance and explain how the process works.