“No Fault” Divorce

By Karen Pritchard

Principal Associate

The 6 April marks the two-year anniversary of the “no fault” divorce regime which introduced landmark reforms for separating couples.

Prior to this, a separating couple had to base their divorce on adultery or unreasonable behaviour, or have been separated for at least two years (and as long as five years if one party did not agree to the divorce). Thankfully, the “no fault” regime does not require parties to base their divorce on any of these reasons, and the divorce is made on the basis that the marriage has irretrievably broken down.

The introduction of online divorce has made the process much simpler and user-friendly, particularly to litigants in person.

The fact that the divorce doesn’t have to be based on any reason save that the marriage has irretrievably broken down is a significant reason, and certainly prevents the unnecessary creation of animosity, as was the case when parties had to rely on adultery or unreasonable behaviour. This has helped to encourage parties to take a constructive approach to the separation, the financial settlement and the arrangements for the children.

The biggest change to the process is the fact that both parties can be an “applicant” to the divorce if they agree to do so. This also helps to avoid unnecessary conflict and blame.

However, due to the mandatory 20-week period between the date of the divorce application and the earliest point at which the court can make the conditional divorce order (previously known as “decree nisi”), the process can be delayed. It is sensible to use that window of time to complete the financial disclosure process, and to negotiate a settlement which is then documented into a court order. As the earliest point at which the court can approve that financial order is when the conditional divorce order has been made, I have seen an increase in the number of my clients who have spent time, effort and money in reaching an agreement and signing a financial order, only to then have to wait for the conditional divorce order to be made in order for the financial agreement to be approved. It is only when the financial order is approved by the court that it is binding, and so sensibly, the terms of the order (e.g the sale of a house) should not be implemented until it has been approved. Very often, though, parties require slightly longer than the 20 week period to reach an agreement, and so there is no delay as a result.

In short, the introduction of no fault divorce has been a positive change to the separation process.

If you have any queries please contact our expert Family team on 0345 646 0406 or fill in our online enquiry form and a member of the Team will be in touch.