No-fault divorce: three years on

The Divorce, Dissolution and Separation Act 2020 amended the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 to remove fault in divorce proceedings. Three years ago, in April 2022, the new no-fault divorce came into effect. So what were the changes and what have the impacts been on divorcing couples and the court system?

What changes were made by no-fault divorce?

Before the introduction of no-fault divorce, a spouse needed to show that the marriage had broken down irretrievably and also prove one of five facts: adultery; unreasonable behaviour; desertion; two years’ separation with consent; or five years’ separation.

The law change replaced the above facts with a requirement to provide a statement of irretrievable breakdown, which the separating couple can choose to make jointly if they wish.

It was hoped that the removal of the element of blame in the divorce process would result in less conflict and greater focus on the other arrangements that need to be made following separation, particularly financial matters and child arrangements.

How has no-fault divorce been received?

Many people are relieved when they find out that they do not have to cite a reason for the breakdown of their marriage and that instead they can concentrate on the important issues to be resolved on divorce. Individuals also report that no-fault divorce avoids further escalating tension at a time when relationships are often already difficult.

However, one downside of no-fault divorce is that divorcing couples may question whether they need to take legal advice at all. This has meant that some divorcing couples have not sought advice on the crucial issue of finances, and in some cases children, which they would have received as part of instructing a divorce lawyer before the change in law.

How has no-fault divorce impacted the family courts?

There was a surge in divorce applications as a result of the law change which put pressure on the family courts already seeing year-on-year increases in volumes of divorce cases, worsened by the impact of the coronavirus pandemic. Before April 2022, the mean average time from divorce petition to decree nisi (the mid-stage of the previous divorce process) was 36 weeks, and decree absolute (the final divorce order) was 56 weeks.

As part of the new change, a divorcing couple has to wait a minimum of 20 weeks following receipt by the receiving party of the divorce application (previously called the divorce petition) before they can apply for a conditional order (previously called the decree nisi). This waiting period is designed to give the parties time to reflect and to discuss any other arrangements that need to be made, particularly in relation to finances. Once the conditional order is granted, a further wait of 6 weeks and a day is required before an application can be made for the final order (previously known as the decree absolute). This means that the divorce process can take a minimum of 6–8 months, assuming that financial and child arrangements are agreed. If these matters are not agreed, it is open to either party to make separate applications to the family courts for judicial assistance. Disputes over finances and child arrangements can currently take one year from application to final order, sometimes longer. And where parties act as litigants in person (without legal representation), this period can be even longer.

Therefore, whilst no-fault divorce has simplified the divorce process, there are still significant delays in the family courts in dealing with financial and child arrangements.

What are the non-court dispute resolution options?

Non-court dispute resolution (NCDR) describes a process that enables parties to resolve legal issues without applying to the courts. NCDR includes mediation, collaborative law and family arbitration.

NCDR has a number of advantages: resolving disputes more quickly, saving costs, and meetings being held in private and therefore kept confidential. In the family courts, long delays can create uncertainty, instability, financial hardship, and negatively impact the well-being of children.

Whilst the divorce process has now been somewhat streamlined, it is worth seeking advice from a specialist family solicitor when you decide to divorce so that you can understand your legal and financial position. A solicitor can assist with financial disclosure, negotiate the division of assets following divorce, and advise on child arrangements, if relevant. Seeking that advice and expertise at an early stage can help parties avoid lengthy delays and reach amicable agreements as quickly as possible.

If you have any questions or concerns about divorce, please contact family lawyers Claire O’Flinn and Carys Mason.