No fault divorce

The law on divorce is changing on 6 April 2022, removing the requirement for parties to place blame on one another.

Currently, if someone wants to get divorced, they or their spouse must submit a petition on the grounds that the marriage has broken down irretrievably. The petitioner must then rely upon one of five reasons for the breakdown, three of which are ‘fault’ based: adultery, unreasonable behaviour, and desertion. The other two are two years’ separation with consent or five years’ separation without consent. Therefore, if couples want to divorce before two years of separation, they must apportion blame. The new rule means that although the irretrievable breakdown of the marriage is still the sole ground for divorce, this no longer has to be proven by reliance on the fault of the other party. Instead, the person seeking the divorce is simply required to make a statement that the marriage has broken down irretrievably. A bar on applying for a divorce within the first year of marriage remains in force.

With this change comes the introduction of new terminology around divorce. The divorce ‘petition’ is now an ‘application,’ the first decree of divorce, formerly the ‘decree nisi’ is now a ‘conditional order’, and the second decree of divorce, the ‘decree absolute’, is now a ‘final order’. One or both parties can apply for divorce, and there will be a 20 week minimum period between an application for divorce and the first conditional order. It is only once the conditional order is pronounced that the Court has the power to approve a financial settlement so this may create delays in obtaining binding financial deals.

This is generally viewed as a positive change: it removes the need for spouses to place fault on one party for the end of their marriage, which will, in turn, hopefully lessen the animosity between the parties throughout the divorce, financial remedy and possible Children Act proceedings. However, there are some who view the opportunity to set out why their marriage has ended as an important part of the divorce process, who might be disappointed by this change.

For any help or advice on a divorce please contact your usual Boodle Hatfield adviser.