No fault divorce came into effect in England and Wales (E&W) on 6 April 2022. This is a major transformation to divorce in E&W and brings our family law in line with many other countries. The new law will apply to all divorces started from 6 April. Those divorce cases started before that date will continue to be processed under the previous law.
Here are answers to some of the main questions about no fault divorce. You can find out more here.
How does ‘no fault’ divorce differ from fault-based divorce?
A person wishing to divorce in E&W before 6 April 2022 needs to demonstrate that the marriage has broken down irretrievably by proving one of five facts (adultery, unreasonable behaviour, desertion, or separation for two years (with consent) or five years (without consent). In other words, even with mutual agreement to divorce, a couple must wait a minimum of two years, or else apportion blame for the relationship breakdown.
From April 6, couples will be able to divorce by simply making an application to court confirming that the marriage has broken down.
Do both spouses have to agree to divorce?
No – either spouse can apply. In addition, for the first time, both spouses can agree to make a joint application for divorce, rather than one person starting things off.
Can I stop my spouse from divorcing me?
No, not unless the court doesn’t have jurisdiction to deal with the divorce (this basically depends on whether you are habitually resident or domiciled in England and Wales).
You can no longer argue that the marriage has not broken down irretrievably: the fact that one spouse has made an application for divorce will be considered to be sufficient evidence that you are entitled to a divorce.
So does this make divorce ‘easier’?
Yes, in the sense that the new law removes several outdated obstacles that have long been viewed to be unhelpful for separating couples.
Do we need separate lawyers?
The fact that a divorce application can be made by one or both spouses under the new law means that it is inevitable that some clients will want to instruct one lawyer, not two. We are working out as a profession, how we can adapt to meet this requirement. Whilst it is not possible for a lawyer to act for both clients in a divorce where there is a conflict, it is possible for one lawyer to assist both spouses in other separation models. Withers has led the way in this regard, with our flexible Uncouple model.
Has the legal language for divorce changed?
Yes – no more ‘decree nisi’ orders or ‘decree absolutes’ – instead we shall have conditional orders and final orders of divorce.
What are the new timescales?
The new timeframe provides for a 26-week time period between starting a divorce application and the final divorce order, although arrangements for children and financial matters will need to be dealt with alongside this. So, it will be important to get specialist legal advice from the outset, and to think early on about the support you will need for you and for your family so as to handle the divorce in the best possible way.
