The introduction of the Divorce, Dissolution and Separation Act 2020 has changed the law relating to divorce and dissolution of civil partnerships. So what does no fault divorce actually mean?
The Act came into force on 6 April 2022 and introduces ‘no fault divorce’ in that it is now possible to apply for a divorce or dissolution of a civil partnership by providing a simple statement of irretrievable breakdown of the marriage or civil partnership. With the introduction of no fault divorce most applications will likely be undisputed and the court will not need to consider the reason for the breakdown of the marriage or civil partnership.
It is now possible to apply for a divorce or dissolution of a civil partnership by providing a simple statement of irretrievable breakdown of the marriage or civil partnership.
Old Law
Divorces that started on or before 5 April will continue to progress under the old law. Prior to no fault divorce, in establishing the irretrievable breakdown of the marriage, the person applying for a divorce had to rely upon one of five facts:
- Adultery
- Unreasonable behaviour
- Desertion
- Two years separation with consent
- Five years separation
Unless you had been separated for two years or more and your spouse consented to the divorce or you had been separated for five years or more, the party applying for the divorce was required to show that the other party was to blame.
Do Both Parties Have To Agree To A No Fault Divorce?
It is no longer possible to defend an application for a divorce or dissolution of a civil partnership, save in circumstances where there is a dispute in respect of jurisdiction or the validity of a marriage or civil partnership.
This means that one party can make an application on their own, even if their spouse or civil partner does not necessarily agree with the divorce.
What Has Changed?
Some of the other changes introduced include the following:
- Joint applications can be made, and couples can now apply together for a divorce or a dissolution of a civil partnership.
- There is a new timeframe of six months. This is made up of a minimum period of 20 weeks from the application being issued until the conditional order can be applied for and a further six week period from the conditional order and when the order can be made final
- The language relating to divorce and dissolution has been updated. Petitioner has become Applicant, Decree Nisi become Conditional Order and Decree Absolute becomes Final Order
Can Behaviour Be Taken Into Consideration When Sorting Out The Finances Or Arrangements For The Children?
When couples are going through a marriage or civil partnership breakdown it is a highly emotive time. One party may blame the other if there has been adultery or if that party does not want to separate.
One party may feel that the outcome of the financial settlement should reflect the fact that their spouse or civil partner has behaved badly but the reasons for the breakdown of the marriage or civil partnership very rarely have an impact on the financial settlement.
When considering the arrangements for children the starting point is that it is important for the children to have a relationship with both parents unless there are clear reasons as to why this would not be safe or in their best interests.
Can I Claim Costs?
Under the old law it was commonplace for the person applying for a divorce based on the faut of the other party to ask the court to make an order that the other party pay the costs of the divorce.
With the introduction of no-fault divorce, the court’s decision about whether to make a final divorce or dissolution order will not depend on the court making any findings about the responsibility of either party for the breakdown of the marriage.
This means that while the court will retain a discretion to make a costs order, the circumstances in which an order for costs will be appropriate are likely to be very limited.
It may still be relevant for the parties’ litigation conduct to be considered, particularly if the court considers that the conduct of one party has been unreasonable.
Aside from cases where one party has behaved unreasonably in terms of their litigation conduct, in an application for divorce or dissolution of a civil partnership where the parties have conducted the proceedings in a reasonable manner, a costs order will likely be inappropriate.
The new divorce and dissolution applications do not include any provision for applying for a cost order. This means that if you are seeking to apply for costs you will need to prepare a separate application notice and provide written evidence in support setting out the grounds on which a cost order is sought.
An End To The Blame Game
Separated couples may have previously been reticent to start proceedings due to not wanting to place blame on their spouse or civil partner.
Now that the law has changed with the introduction of no fault divorce, you may now feel that separating from your spouse or civil partner will be less acrimonious.
It is anticipated that no fault divorce will help to reduce conflict and allow couples to focus on important matters, such as sorting out the arrangements for the children or finances. It is hoped that the new law will allow separating couples to work together collaboratively to resolve issues that arise on separation.
Signposting to additional support and relevant organisations can be found in this link.
Postscript. Issues arising out of divorce or separation even with no fault divorce can often prove stressful for the couple and other family members. This article written by Dylan Watkins GP offers a useful overview for those who may be struggling.
Sarah Whitlegge is a contributor to ‘Separating With Children 101’, 3rd edition (Bath Publishing, 2023).
