2022 will see ‘no fault’ divorce become law

On behalf of Attwaters Jameson Hill posted in Family Law on Wednesday, June 30th, 2021

In April 2022, the much-awaited Divorce, Dissolution and Separation Act 2020 will introduce what has become known as ‘no fault’ divorce. It has long been seen by campaigners and legal professionals as a much-needed amendment that will greatly reduce the stress, expense and acrimony that characterise so many divorces today.

What does current legislation say?

To get divorced in England and Wales at the moment, you must demonstrate that the marriage has irretrievably broken down by citing one of the following five grounds for divorce:

  • Adultery with a person of the opposite sex
  • Unreasonable behaviour
  • Separated for at least two years (if both agree to the divorce)
  • Separated for at least five years (if only one partner wishes to divorce)
  • Desertion

Campaigners have been calling for change for many years now, saying that current divorce law forces couples to play the ‘blame game’ in order to separate, promoting unnecessary conflict and causing children emotional trauma.

A fault-based system

Many people consider the five grounds for divorce outlined above as limited, outdated and inflexible. Many feel that they cannot escape blaming their spouse for the dissolution of the relationship, which is detrimental to the promotion of amicable separation and settlements. If a couple wish to separate amicably, they face a two-year wait, while the five-year period if one party does not consent is such a long wait that most petitioning spouses will take a fault-based route instead, such as unreasonable behaviour or adultery.

The government’s Divorce, Dissolution and Separation Act 2020 will reform the divorce process to remove the concept of fault, allowing couples to separate amicably. The Act received Royal Assent in June 2020 and was originally set to be introduced in the autumn of 2021. However, this was later amended to April 2022 to allow for more time for the development and testing of the digital arm of the service.

What will change?

The new legislation will remove the need to cite one of the five grounds for divorce, in order to reflect new attitudes and the fact that some couples simply drift apart amicably. Instead, one – or both – spouses will be required to submit a statement of irretrievable breakdown (couples will be able to make a joint application should they wish). The reform also ensures that a divorce cannot be struck down simply because the opposing party does not want it to go ahead. The Act also reflects a move to simplify the divorce process and promote the use of plain English throughout, such as by changing ‘decree nisi’ to ‘conditional order’ and ‘decree absolute’ to ‘final order’. These changes will also apply to the dissolution of civil partnerships.

From the date the petition is first filed, a 20-week ‘period of reflection’ will begin, after which the conditional order (currently decree nisi) will be granted. Couples must then wait a further six weeks before applying for the final order (currently decree absolute). This will increase the minimum time period required for a divorce to be finalised.

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