No-fault divorce third anniversary – but is it a happy celebration?

There can be no more gratifying an experience for a professional advisor than delivering advice which is not only correct but well received.

Family practitioners will recall all too well the sense of anxiety and trepidation with which new clients would enter initial meetings, embarrassed and nervous about being compelled to consider how to set out in a sterile Court form the fact of an affair or to be compelled to instruct a complete stranger to draft the particulars of how and why their marriage had broken down.

Palpable relief can emanate from divorcé/ées on hearing that they will not have to go through the process of allocating blame. A simple confirmation by one or both parties that the marriage has broken down irretrievably is all it takes now to be guaranteed a divorce.

The “new” legislation (just celebrating its third anniversary) removed the ability to ‘defend’ a divorce and so, where only one spouse wishes to divorce, the other will no longer be able to object, unless they can do so on jurisdictional grounds or on the basis that the marriage was not legally valid in the first place.

The ideas lying behind the simplification of this process aimed at starting the proceedings on a more positive footing and for the parties and their advisors to focus at an earlier stage on the resolution of the couple’s finances, which was usually the more complex and time-consuming element of the divorce (absent children proceedings), rather than the reasons for the end of the marriage.

While practitioners were initially concerned about the fact that, once issued, the new divorce applications would be subject to a 20-week waiting period before the parties could apply for the Conditional Order (the first order in the divorce proceedings, granting the Court the ability to make financial orders), this does not seem to have posed many issues. This represents a period during which the parties can seek to reach a financial agreement.  This is often, however, a matter of little concern given the delays in the financial Courts, meaning cases are rarely resolved by way of a Court determination within that time in any event.

While this all sounds like a jolly tea party, the reality is that the removal of the initial ‘blame game’ does not eradicate conflict in divorce. There will always be an underlying reason for the separation – whether a painful transgression or merely incompatibility. That cannot be erased by a legal framework. The government’s suggestion that as a consequence of a no-fault divorce application “couples will be more likely to work together collaboratively to resolve issues that arise on separation” was perhaps rather naïve.

Indeed, without the catharsis of a fault-based divorce petition, where does the emotion, hurt and anger go? Distressed spouses may seek to vent their frustrations elsewhere within proceedings, for instance, by making ‘conduct’ arguments. These arguments rest on the idea that one party’s behaviour is such that the other should receive a higher financial award than they might otherwise have done.  This element of financial remedy proceedings has been given renewed attention over the last year or so – and I wonder whether this is an unexpected side effect of the new no fault regime.  Accusations of domestic violence, including coercive and controlling behaviours inhabit a greater number of cases practitioners deal with these days too. This could of course be explained by an increased awareness that such behaviours are unacceptable but in the past these allegations would have been mostly contained within the divorce proceedings.  The Courts remain cautious about “conduct” but our clients increasingly press for these arguments to be made on their behalf in the financial courts thus underscoring that the removal of “fault” does not in fact suddenly remove the pain of marital breakdown.

This article was first published by IFA Magazine in May 2025