Info & Advice

A year of no-fault divorce

April 6 is a significant anniversary in English family law: one year ago today the Divorce, Dissolution and Separation Act 2020 came into force. The legislation made a number of changes to the marital law in England and Wales, but one was, by some margin, the most significant: the removal of the long past-its-sell-by-date stipulation that anyone applying for a divorce must cite one of five reasons when doing so, in order to establish that the marriage had broken down.

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No more blame game

These five reasons were:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Separation for at least two years with mutual consent.
  • Separation for at least five years without mutual consent.

It is immediately clear that four of those five reasons explicitly attributed blame for the marriage breakdown to the other party. This meant that couples who wanted to end their marriage but who didn’t want to place blame either had to wait several years before they could get a divorce, or go through the elaborate charade of making up reasons for the divorce that did not reflect a complicated reality.

As the decades had passed, this requirement had become increasingly controversial, with many legal campaigners insisting it created unnecessary acrimony during an already challenging process. Occasionally, this focus on blame led couples into expensive and time-consuming litigation.

But now, under the Divorce, Dissolution and Separation Act, applicants need only formally declare that their marriage has irretrievably broken down, with no blame attributed either way, and no need for contentious accusations or exaggerations. The declaration can even be made jointly with their soon-to-be ex. This new approach to ending a marriage has been dubbed ‘no fault divorce’.

Out with the old

In addition to removing the old focus on blame, the Act simplified the entire divorce procedure, replacing grandiloquent Franco-Latinate terminology with plainer terms: the ‘decree nisi’ and ‘decree absolute’ are now a more straightforward ‘conditional order of divorce’ and ‘final order of divorce’. Ending marriage is now a largely bureaucratic process which can be completed entirely online if you and your spouse agree on all the details. Applicants submit the necessary forms and fees at set intervals. The rarely used option to ‘defend’ a divorce application has also been removed. This used to enable unhappy or especially stubborn partners to disrupt and delay divorce applications, adding considerably to the expense and stress of the whole procedure.

The Act also removed fault findings from civil partnership dissolution, as well as from the rarely used divorce alternative judicial separation.

Children’s interests

The introduction of no-fault divorce was widely welcomed by legal experts, family law practitioners, and campaigners, who all hailed such a decisive shift away from blame culture. This change in focus encouraged couples to focus on the much more important, practical aspects of divorce, such as the division of assets and the welfare of any children. The latter are innocent bystanders in divorce and anything that made the process a smoother, less upsetting time for them was always going to be welcome news for parents and family law professionals alike.

Joanne Major is founder and managing director of successful boutique Major Family Law, based in Ponteland near Newcastle. She explained that the introduction of a mandatory 20 week waiting period before the family courts issue a conditional order of divorce had provided families with a valuable opportunity.

“The couple themselves can step back and be sure they really want to end their marriage, but they can also talk through those crucial co-parenting arrangements should the divorce go ahead. It’s a great time to seek out support services, try family counselling and really consider the needs of the children. That looming 20-week deadline provides real focus – a solid incentive to make an effort that struggling families might not otherwise be inclined to make.”

One year in

Over the last twelve months, family lawyers around the country have seen a shift in tone when clients intent on divorce walk through their doors or send that first email. Now, no time need be wasted on the whys and wherefores of the marriage breakdown, on establishing whose fault it may have been and on creating an acceptable legal narrative around that. Instead, attention can immediately be focused on family circumstances and on the financial realities of a divorce. It is a much efficient approach.

By prioritising the needs of children and removing the need for blame, the Divorce, Dissolution and Separation Act has enabled more amicable and constructive divorce proceedings to become the norm, helping families to move on with their lives as soon as they can, with greater ease and a lot less conflict.

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