A year of No Fault Divorce – what does it mean for separating couples?
Today marks the anniversary of the introduction of No Fault divorce, a long-awaited change in our divorce laws.
Before 6th April 2022, one spouse had to ‘blame’ the other for the breakdown of the marriage (unless there had been a period of separation of at least two years). Being forced to start the divorce process by blaming one party was largely unhelpful, and it encouraged the separating couple to look to the past. We find that time and energy is better spent on focusing on the future, coming to an arrangement regarding the division of their finances and arrangements for their children in a constructive way. The divorce process is simply a mechanism to enable couples to go from being married to divorced, and the reason for the divorce very rarely had any bearing on anything else –finances and children arrangements are dealt with separately, and so there was little to be gained from the ‘blaming’ process.
Under the new rules, the element of blame has been removed entirely. Instead of requiring a period of separation, alleging adultery or setting out specific examples of the other party’s ‘unreasonable behaviour’, the applicant can simply sign a statement confirming that the marriage has broken down irretrievably. It’s also possible for both parties to apply for a divorce together (known as a ‘joint application’), in which case they both sign the statement.
Also, there are now fewer ways in which one party can try to disrupt and delay the divorce, which means that generally the process is more predictable and runs more smoothly. Thankfully, the somewhat archaic language of divorce has also been modernised: ‘Divorce Petition’ is now a ‘Divorce Application’, ‘Decree Nisi’ is a ‘Conditional Order’ and ‘Decree Absolute’ is now a ‘Final Order’.
Some people were concerned that the introduction of the new system, would result in an increase in the divorce rate, as it made getting divorced seem ‘easier’. The removal of the ‘fault’ element, some argued, would mean that couples would take the process less seriously, and may not give the decision to divorce due consideration. Court statistics show that the divorce rate did indeed rise last year after the law changed, but in our view at least part of the reason for this is that many couples had been putting their divorce plans on hold until the law changed, resulting in a large build-up of applications. How the stats look going forward remains to be seen.
Although removing blame from the divorce process has been largely positive, we’ve found that for some clients, being able to set out the reasons for their divorce was helpful and therapeutic. We recognise that being able to talk about the reasons for their divorce and the impact that their experiences have had on them is an important part of the clients’ journey, and shouldn’t be neglected. We have found that although most clients have welcomed No Fault divorce, they still need to deal with what they have been through and not sweep it under the carpet. In response to this need, we launched our in-house counselling service last year, which has been hugely beneficial for clients, giving them an outlet and enabling them to work through the emotional impact of their divorce.
Removing No Fault divorce is a good start, but the general approach to how separating couples resolve their arrangements following divorce also needs attention if there is to be genuine progress.
We encourage parties to use methods of dispute resolution other than the adversarial court process, where possible and appropriate. Mediation in particular can be extremely effective and promote communication between separating couples and we therefore offer a mediation service and a service which supports clients through the mediation process. The government is keen to see mediation used more, especially in matters involving children and to potentially make in compulsory in some cases.
Looking to the future, next on the agenda for law reform is the court’s approach to finances on divorce, and the Law Commission has recently announced a wide-scale review. As with our divorce laws, the law which deals with the financial element of divorce is arguably outdated, and hasn’t changed since the 1970s. Law reform takes time, so nothing is likely to change any time soon, but the review is a step in the right direction.
How we can help
For more information about how we can support you in this area, please visit the divorce lawyers section of our website.
