What Is No-Fault Divorce In The UK
The landmark Divorce, Dissolution and Separation Act 2020 became law on 6 April 2022. The most significant change this brought was ‘No Fault Divorce’, which means instead of having to say why a marriage is over, a couple is now able to jointly (if they agree) or individually cite “irretrievable breakdown” as the sole ground for wanting a divorce without having to produce examples of bad behaviour. So the new law has effectively removed the blame element, better reflecting modern day attitudes and minimizing potential conflict.
Traditional ‘grounds for divorce’
To obtain a divorce in England and Wales, the parties must have been married for at least one year and the ‘petitioner’ (the person filing for the divorce) must prove that the ‘marriage has broken down irretrievably’, often referred to as “the grounds for divorce”. They must do this by proving so using one of five statutory ‘facts’:
- Their spouse has committed adultery and, as such, they find it intolerable to live with them.
- Their spouse has behaved in such a way that they cannot reasonably be expected to live with them. This is commonly, known as ‘unreasonable behaviour’ by Family Law practitioners.
- Their spouse has deserted them for at least two continuous years.
- The parties have been separated for at least two years AND the petitioner’s spouse consents to a divorce.
- The parties have been separated for at least five years, regardless of whether the petitioner’s spouse consents.
However, if the petitioner cannot prove at least one of the above stated facts, their divorce petition will likely be dismissed.
By far and away the most common ‘fact’ relied on is unreasonable behaviour. But what about when a couple wants to get divorced, yet neither party has done anything ‘wrong’? Or where neither wishes to blame the other?
No-fault divorce in the UK
Sometimes, couples just want to get divorced because they’ve grown unhappy, through no direct fault of either spouse. This is where no-fault divorce in the UK comes in.
What is no-fault divorce?
As its name implies, no-fault divorce is where a couple seeks a divorce even though neither spouse has committed any wrongdoing or fault. In other words, neither party has to provide and prove any of the traditional “facts”.
Instead, a spouse (or both spouses acting together jointly if they agree) will simply have to notify the court when the marriage has broken down irretrievably rather than prove facts. It will not be possible to contest the divorce. There will be a new minimum period of 20 weeks from the start of proceedings to the date when the court can make a ‘Conditional Order’. 6 weeks after that, the court can conclude matters by making a ‘Final Order’.
Note: these changes are to the divorce process only. The law regarding division of finances and arrangements for children is unaffected.
How did no-fault divorce in the UK come about?
Having received royal assent on the 26th June 2020, the Divorce, Dissolution and Separation Act 2020 is due to come into force on 6th April 2022. It came about, in part, following the widespread attention brought about by the decision in Owens v Owens [2018] UKSC 41.
Mr and Mrs Owens married in 1978. At the time Mrs Owens petitioned for divorce (May 2015) she was 68 and her husband, Mr Owens, was 80. Mrs Owens had already left the marital home and wanted to get divorced because of what she referred to as Mr Owens’ “unreasonable behaviour”.
However, the court hearing the Owens’ case found in favour of Mr Owens, stating it did not consider the behaviour outlined to be ‘unreasonable’. As a result, Mrs Owens’ petition was dismissed.
The matter went as far as the Supreme Court, which upheld the lower court’s decision.
Mrs Owens was forced to remain married to Mr Owens for five years from the date of their separation, even though their marriage had clearly broken down.
The widespread attention the Owens’ case received prompted the government to publish a consultation paper in September 2018 in response: Reducing family conflict: Reform of the Legal Requirements of Divorce. And that’s what paved the way for the Divorce, Dissolution and Separation Act 2020 to be introduced in June 2019.
Final thoughts
Aggrieved parties often feel as though they should be compensated for their spouse’s wrongdoing. For years non-lawyers have thought that “fault” or “blame” impacted financial settlements in divorce cases. Yet the reality is courts rarely ever take this into consideration when ruling on financial settlements.
Needing and wanting to lay blame on a spouse merely serves to cloud the entire divorce process. That’s why amicable divorce, which seeks to reach a resolution as quickly and painlessly as possible, is often preferable in many circumstances.
Note: the guidance set out by The Divorce Surgery is for separating couples that both want legal advice in accordance with the laws of England and Wales.
For more on what is no fault divorce please watch this short video below by The Divorce Surgery Co-founder Harry Gates:
If you have more questions about this topic or any other legal issues arising on divorce or separation, please do get in touch as we are always happy to help. You can call us on 0203 488 4475 or email contact@thedivorcesurgery.co.
Author Name: Editor
Published content by The Divorce Surgery Editorial Team.
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