No Fault Divorce: The End Of The Blame Game And The End Of An Unnecessary Difference Of Treatment For Same-Sex Couples.

By Scott Halliday, Associate Solicitor, Family Law.

The law on divorce and civil partnership dissolution has materially changed.

As of 6 April 2022, no fault divorce is in place and replaces the old system where parties had to state that a marriage had irretrievably broken down and then document how it had broken down. This was most usually through setting out unreasonable behaviours, or citing adultery. If parties were not minded to apportion blame they had to be separated for a period of at least two years and agree to divorce then by consent, be deserted for that same period of two years or wait for five years of uninterrupted separation. At the five year mark consent was no longer required.

The end of the blame game is clearly a major positive move in the right direction. It encourages parties to be more pragmatic and avoid dredging up poor behaviours at the outset of divorce. It has long been said quite rightly, that our old system failed to minimise conflict and actually increased it.

The new system now provides for a considerably more gracious and dignified approach at the outset of divorce. This is to be encouraged and for many will avoid escalation and increased tension from the start, when more so than ever calm is needed, usually to then discuss future child arrangements and or wider financial matters.

The change in the law on divorce has also ended an unnecessary difference in treatment for same-sex couples who have separated and wish to divorce or dissolve a civil partnership.

Same-sex relationships were not treated in the same manner as heterosexual relationships when dealing with divorce or dissolution as they could not proceed with divorce or dissolution on the basis of adultery.

The new law has changed the position; everyone is now on an equal footing. The end of the blame game simultaneously ends an unnecessary difference in treatment.

It was problematic and offensive to same-sex relationships to suggest that adultery was not an option to those parties where it was a pertinent and material reason as to the breakdown of the marriage or civil partnership.

The new divorce regime is clearly to be supported. The benefits of the new system hugely outweigh suggestions that this will undermine the institute of marriage or civil partnerships.

It is important nevertheless to draw attention to the end of an old regime which discriminated against same-sex couples and their intimate relations. It was plainly wrong that same-sex couples who separated were not able to access a particular limb which was open to heterosexual marriages or civil partnerships.

It is important to document these matters and draw attention to these matters as we continue to see same-sex families mainstreamed, protected and respected by the law.

Now all couples who have separated, regardless of sexual orientation, engage in that system in exactly the same manner.