The law on divorce has changed and no fault divorce will replace the old system. This change is likely to come into effect in or after Autumn 2021.
Essentially no-fault divorce will means that one spouse can apply for a divorce without having to blame the other for the breakdown of the relationship. Instead of saying that the other person has committed adultery or behaved unreasonably, you can simply give notice that the marriage has broken down.
Family law expert Hayley Trim has answered some key questions about no-fault divorces to help you stay informed about your options.
Visit our family law section for more information about how we can help with divorce and a range of other family law issues. You can also call us on 0370 1500 100 to speak confidentially with one of our advisors.
All references to “marriage” also apply to civil partnership, “divorce” also applies to dissolving a civil partnership and “spouse” also applies to civil partners.
How is no-fault divorce different from the current divorce law?
To get a divorce in England and Wales under the current law, your marriage must have irretrievably broken down. To show this you have to confirm one of the following:
- The other person has committed adultery*
- The other person has behaved unreasonably and you can’t live with them any more
- You‘ve been separated for 2 years and the other person agrees to the divorce
- You‘ve been separated for 5 years
- The other person has deserted you for at least 2 years.
So unless you’ve been separated for at least 2 years, you would need to say that your spouse’s behaviour is the reason for the marriage ending.
This will no longer be necessary with no fault divorce. The application will simply say that the marriage has irretrievably broken down. You’ll be able to apply by yourself or make a joint application with your spouse.
At Irwin Mitchell, we’re very supportive of this change. It takes away a significant confrontational element of the process.
Under the current law, some people had to make allegations against their spouse even if they both agreed about ending the marriage. It changed the tone of the case and added conflict to an already emotional experience. This doesn’t help in trying to agree arrangements for children or financial matters and can make communication harder.
The reasons for divorce are usually irrelevant to what will happen financially or to any children. If there are good reasons for a particular outcome about children or finances, then the court will look at those separately.
* Note that adultery is not a ground for dissolution of a civil partnership.
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Who can get a no-fault divorce?
Anyone who is entitled to a divorce in England and Wales will be able to apply for no fault divorce. This means that the English and Welsh court needs to have jurisdiction to deal with your case.
Generally you can get divorced here if you or your spouse live or are domiciled here. You don’t need British citizenship and you can get divorced in England or Wales even if you were married in another country.
This depends on various factual and legal criteria which our specialist lawyers can advise you about. The law is different in Scotland.
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How do I get a no-fault divorce?
The government will work out the details over the coming months. Once the new law is in operation, the process will broadly be:
- One party, or both parties together will give notice that the marriage has irretrievably broken down
- After 20 weeks, the party or parties who gave notice confirm that they want to proceed with the divorce
- The court can then make a conditional order
- After another 6 weeks, the court can make a final order.
So it will take a minimum of 26 weeks and probably quite a bit longer accounting for administration and processing time.
There will almost certainly be an online application as well as the option of using a paper form.
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Are no-fault divorces right for everyone?
The decision of whether to end your relationship is of course one for you and not your lawyer. However, although you might want to separate from your spouse, divorce can have far-reaching implications and you should take legal advice before you act.
Timing can be a very important factor. It might be advisable to wait or separate for a period before divorcing, or in some cases to separate without getting divorced. A lawyer can explain the advantages and disadvantages of each option.
If you or your spouse have any international connections, you may need to consider whether to get divorced here or in another country. You should discuss this with a lawyer as early as possible because where you get divorced could make a big difference to any financial settlement.
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Could a no-fault divorce affect the outcome for my finances or my children?
Under the current law, it’s very rare for the reasons for divorce to have any impact on decisions about finances or children. No-fault divorces won’t change the way the court looks at the division of assets, financial provision, or child arrangements.
It could even be easier to reach agreement about these things in some cases because the environment may be less confrontational.
You’ll still need to resolve financial matters and arrangements for children. You can do this via various different routes including through the courts, negotiation, mediation, arbitration, collaborative law or a combination.
The new process mirrors the old one in that it will be necessary to have a conditional order for divorce (what is now a decree nisi) before the court can make an order finalising financial arrangements (whether that is in the terms agreed between the parties or a court imposed order), and that order will then become effective upon a final divorce order being made (the equivalent of the current decree absolute).
It will still be just as important as ever to finalise your financial arrangements in a court order, even if you have reached an agreement. If you don’t, then any financial claims stay open. This means you’d be at risk of a financial claim any time in the future, even after the divorce itself has finished.
The child’s welfare will continue to be the court’s primary concern when deciding child arrangements.
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Do I need a lawyer for a no-fault divorce?
Deciding to get divorced has significant implications for you and your family, even if you’ve reached an agreement with your spouse. At an emotionally difficult time, there’s a lot to think about practically, such as living arrangements, paying the bills and child arrangements.
Divorce also has important legal consequences - for example, it could change your legal status and affect things like your tax position and pension entitlements. You should take advice from a specialist lawyer to help protect your interests and financial position if you’re considering divorce or if divorce proceedings have been started.
We can help you to think through the legal and practical issues and advise on a financial settlement and arrangements for your children. We can support you to try to reach an agreement that works for your family. If you and your spouse can’t agree, we can represent you in court or arbitration to bring matters to a conclusion.
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What should I think about when going through a no-fault divorce?
- Take legal advice before starting divorce proceedings – even the timing of your application could have consequences you haven’t thought about, such as tax
- If you have any international connections, you should discuss these with your lawyer as soon as possible. You may or may not be able to get divorce in a different country and this may or may not be beneficial for you
- If you start your divorce after the new no-fault law starts, you’ll need to decide whether one or both of you will make the application
- Deal with your financial arrangements so that these can go into a court order
- Try to agree arrangements for your children between you. If you can agree then you’re unlikely to need a court order, but it’s helpful to have the agreement set out in writing.
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How much does a no fault divorce cost?
We don’t know yet if the court fee for a divorce will change. It’s currently £550 to issue a divorce petition.
If you instruct a solicitor to deal with the process for you this may be done at an hourly rate or on a fixed-fee basis. At this stage, we expect that no fault divorce should take less time and therefore cost less than currently.
In any event, it’s important to take legal advice before starting divorce proceedings because of the financial implications.
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Should I wait for the law to change before getting divorced?
No-fault divorce will not be available until the autumn of 2021 or perhaps later. Only then will you be able to start an application for no-fault divorce.
This means that you probably wouldn’t get your divorce until summer 2022 since the process will take a minimum of 26 weeks.
Whether you want to wait or not is up to you. But the final resolution of your financial matters can’t take place until there is a divorce, so you might want to start sooner rather than later. Remember that you can already apply for a divorce without alleging fault if you’ve been separated for either two or five years, depending on the circumstances. You might reach the end of this period before autumn 2021 anyway.
And you can still have an amicable divorce even though no-fault divorce isn’t available yet. We can advise and support you through a non-confrontational divorce, using methods such as collaborative law and mediation to keep court proceedings to a minimum.
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If you’re thinking about getting divorced or if proceedings have already started, contact us online or call us on 0370 1500 100 to find out more about how we can help.