Can my spouse and I have a no-fault divorce?

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Does there still need to be a blame for the breakdown of the marriage?

After years of campaigning the Divorce, Dissolution and Separation Bill was given Royal Assent in June 2020. Once this Act comes into force, couples who wish to end their marriage will be able to apply for a divorce, without the need to ascertain blame.

English and Welsh divorce law has been highly criticised for years: being some 50 years old and out of touch with the standards of today’s society.

Under the current law, if spouses want to commence divorce proceedings, one spouse (the Applicant) has to prove the irretrievable breakdown of marriage based on one of five facts. Only two of the facts are not fault-based: ‘two years separation with consent’ and ‘five years separation’. So, unless you’ve been separated from your spouse for at least two years, your only other option under current law is to blame your spouse (the Respondent) for the breakdown on one of the three fault-based facts: ‘adultery’, ‘unreasonable behaviour’ or ‘desertion’.

It doesn’t take a family law expert to see that citing one of these fault-based facts in divorce proceedings with listed examples, only adds to the hostility and likely fall-out of an already turbulent time in a separating couple’s lives. As such, access to no-fault divorces are a long awaited and welcome update to the family law arena and one which family law specialists have been campaigning for, for many years.

Should I wait for no-fault divorce?

Without active divorce proceedings, you cannot have a final order in relation to any settlement agreement for matrimonial finances. In many circumstances, spouses are living together or are otherwise in ‘limbo’ until such time that the financial settlement has been reached and their assets divided. Under the current law, we suggest that spouses proceed on one of the fault-based options if applicable, in order to move their matter forward so they can look to moving onto the next chapter of their lives.

The Ministry of Justice is currently working on a commencement date of 6 April 2022.

How can we help minimise the fall-out?

Whilst a fault-based petition can be inflammatory, there are a number of things we, as family lawyers, can do to calm the situation such as:

  1. Explain to your spouse that under the current law, the only option to move forward is to consider a fault-based petition, but we can expressly state that you do not wish to inflame matters;
  2. Explain to your spouse that this will not necessarily have any effect on any financial settlement reached (see our article: Does bad behaviour affect the financial settlement in a divorce?);
  3. Send the petition to your spouse in draft first so they can digest the content before being formally sent this by the Court and can propose amendments should they feel particularly aggrieved by any examples listed;
  4. Ensure that the points raised within the petition to prove the fault-based fact are sufficient to meet the Court’s standards, but not excessive to unnecessarily aggravate matters.

I want to wait for a no-fault divorce, can I start sorting our financial settlement now?

If you and your spouse feel particularly strongly about waiting for no-fault divorce, you can make interim provisions to deal with your separation outside of divorce proceedings by way of a separation agreement. This is completed as a deed and can reflect any financial settlement you and your spouse have reached.

The separation agreement can also state that upon the no-fault divorce coming into law, you both agree to instigate divorce proceedings and take steps to turn your separation agreement into a financial order for the Court which mirrors the terms of the separation agreement and which is binding by the Court once the divorce is finalised.

For further information and advice concerning a divorce or a separation agreement, please contact Katie Copsey in our Family Law Team on 01733 882800 or email [email protected].

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