- 30 Mar 2022
- 2 min read
No Fault Divorce is finally here, but what does it mean?
As a Family Law Solicitor, I have heard the phrase ‘No Fault Divorce’ bandied around for nearly 3 years. Whilst I was a little apprehensive at the start, I soon came around to the idea that No Fault Divorce will enable a more amicable and constructive approach to divorce and separation.
The old law stated that in order to obtain a divorce you had to prove the marriage had irretrievably broken down. To do that, the court must have been satisfied that one of five facts had been proved. Two of these facts placed blame on the other, adultery or the other party’s unreasonable behaviour. Otherwise, the parties had to wait at least two years from the date of separation before applying. This delay often added friction to an already highly emotional situation.
In the ground-breaking case which set the wheels in motion to change the outdated law, Mrs Owens sought to divorce her husband stating the marriage had irretrievably broken down as a result of his unreasonable behaviour. Mr Owens did not accept that his behaviour was so bad that Mrs Owens could not reasonably be expected to live with him. The case went to the Supreme Court and the majority of Justices concluded that based on the evidence, Mrs Owens had to remain married.
Following a campaign by Resolution, backed by other organisations and the press to bring in No Fault Divorce, the Divorce Dissolution and Separation Act 2020 comes into force on 6 April 2022. The new Act permits either party, or a joint application to be made to the court seeking a divorce. The application must include a statement that the marriage has broken down irretrievably and the court will now take this at face value and no further evidence is required. The power to decide whether a marriage has broken down irretrievably has now been given to the parties to the marriage. The ability to defend has also been removed.
To ensure the parties don’t make a hasty decision, there remains a ‘cooling off’ period of a minimum of 20 weeks between making the initial application and applying for the Conditional Order (previously the Decree Nisi). A further 6 weeks is required after the Conditional Order is made and before the Final Order (previously the Decree Absolute) can be applied for. This gives the parties time to address other matters which may result from the separation, such as the arrangements for children and financial division.
If you require any legal advice on family matters, then please contact Trethowans here or call us on 0800 2800 421 and one of our team would be happy to help. We offer a free half hour initial consultation for new family clients.