No Fault divorce - a modern way to separate? - Boodle Hatfield

Your lawyers since 1722

31 Mar 2022

No Fault divorce – a modern way to separate?

Written by

4 min read

The introduction of no-fault divorce in April 2022 no doubt represents progress. Government press releases boldly state that the new legislation "will bring divorce law in line with the government’s approach to family justice – avoiding conflict wherever possible and reducing its damaging effect on children in particular." Couples will no longer have to 'prove' to the satisfaction of the Courts that their marriage has broken down irretrievably by evidencing one of five 'facts'. Instead, one spouse - or the couple jointly - will simply be required to confirm via a brief statement that their marriage has irretrievably broken down. This of itself will be sufficient to allow the divorce to proceed.

In a generation where 'conscious uncoupling' and joint statements upon social-media separation (think Belinda and Bill Gates) are the bread and butter of rich and famous couples, it is about time the legislation caught up. It has long been said that to require a spouse to evidence in black and white specific examples of behaviour resulting in the breakdown of a partnership, thereby apportioning blame, starts divorce proceedings in an inflammatory and unnecessarily adversarial manner. The removal of this requirement and a system which allows for a joint, anodyne legal application to be made seems an obvious way to maintain an amicable approach to separation where this is what the couple want. Indeed, this could be of paramount importance in cases where partners are expected to co-parent any children of the relationship in years to come.

By the introduction of this new legislation, the government may also be seeking to avoid a repeat of the now famous case of Tini Owens, who, in the face of her husband's objection to their divorce, was refused a divorce on the 'fact' of unreasonable behaviour by the Supreme Court. Consequently, she had to wait to proceed on the basis of an alternative 'fact' of 5 years' separation without the consent of her spouse to achieve her divorce. The media dubbed her trapped in a loveless marriage and the government responded with the introduction of this legislation, The Divorce, Dissolution and Separation Act 2020 (also known as the ‘DDSA’), which it says "represents the biggest shake-up of divorce laws in half a century". Crucially, the new legislation removes the ability to 'defend' a divorce and so, where only one spouse wishes to divorce, the other will no longer be able to object to or 'contest' it.

Whether the legislation really represents such great strides forward in practice remains to be seen. While the government espouses the virtue of minimising conflict, the DDSA also - perhaps counterintuitively - introduces a mandatory 20 week cooling off period (save in limited circumstances) between the submission of the initial application and when the applicant(s) may apply for the conditional order (the first of the two decrees of the divorce; formerly known as the 'decree nisi'). The government says this "will provide a meaningful period of reflection and the chance to turn back if both parties want to, or, where divorce is inevitable, it will better enable couples to cooperate and make arrangements for the future". For many, formally commencing divorce proceedings will not be undertaken lightly - the imposition of a paternalistic statute-mandated waiting period seems to fly in the face of the lessons learnt during the Tini Owens case. Such prolonged periods of entrapment may even exacerbate an already strained or even hostile situation for couples during this time, rather than assisting them to separate as seamlessly as possible.  

Certainly the government has not simply cleared the path to 'divorce on demand' - while the application itself has been simplified and can be completed online, the cost of issuing the paired-down application has actually increased to £593. The DDSA does not deal with how this cost should be split between the parties. Even in cases where the parties are able to reach a financial settlement, the submission of a financial remedies consent order to the Court will cost a further £53. If parties are unable to agree, a cost of £275 will be incurred simply to commence Court-based financial remedy proceedings. Any lawyer's fees will of course be additional to this.

In situations of genuine acrimony, the removal of the initial 'blame game' will not necessarily ensure a no-conflict divorce. Needless to say, for many, there will be an underlying reason for the separation - whether a particular transgression or simply an underlying incompatibility. Perhaps then it is naïve for the government to suggest that simply 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".

Indeed, without the catharsis of a fault-based divorce petition, one has to wonder whether discouraged or even vengeful partners will seek to vent their frustrations elsewhere within proceedings, for instance by making 'conduct' arguments within any financial remedy proceedings. Might they even turn to the criminal courts in pursuit of 'justice' for the wrong-doings of their soon to be ex-spouse? Will this be a case of one step forwards, two steps back? As ever, the particular circumstances of every separating couple will dominate the implementation of the provisions of the overarching legislation and it remains to be seen whether the DDSA has really gone far enough to ease the burden of divorce and financial separation in practice.

Written by