No Fault Divorce – An Update by James Leach

The 6th April 2022 heralded a seismic change in the divorce law of England and Wales with the long-awaited introduction of non-fault divorce. James Leach, Family Solicitor, discusses the changes to the divorce laws following their introduction earlier this year.

For around 50 years, divorce law remained substantively unchanged and for couples who had been separated for less than two years, the petitioner had to
“pin the blame” for the breakdown of the marriage on their spouse, either by calling them out on their adulterous ways, or more commonly, citing examples of their purported unreasonable behaviour. The ultimate end-point of the blame game was to convince a judge that the marriage was broken, beyond repair.

The old law was maligned – universally. Beyond being a rather shocking example of nanny state-like interference with personal choice, the law also had the undesirable effect of exacerbating tension. This was all before the more involved issues of child arrangements and the financial implications of marriage breakdown could be fully considered.

In truth, the burden of convincing an over-worked judge that the marriage was irretrievably broken was not a high one. The most prudent approach was for both parties to agree the petition beforehand, in order to avoid it being defended. Examples of bad behaviour were usually agreed upon, leaving neither party especially satisfied; the petitioner because the examples
were often fairly tame ones in order to ensure the petition was palatable enough not to be defended, the respondent because they were being blamed
full stop.

Costs were another frequent flashpoint. Because one party was considered blameworthy, they were often ordered to pay costs to the petitioning party.
The new law does away with the blame game and the process has become far more amicable. A judge will accept as fact the statement in the application that the marriage has irretrievably broken down, brushing aside the need for the carefully crafted examples of bad behaviour previously required to convince them.

To add to the spirit of co-operation between spouses, applications can now be jointly made. Even the language has become friendlier. Gone are the anachronistic Latin terms “decree nisi” and “decree absolute”, substituted for more approachable terms “conditional order” and “final order”. The “petition” has become an “application”.

So, three months in, all has been extremely positive. The simplicity of the new process has meant that clients are needing less lawyer involvement
in the divorce part itself, with many dealing with the application
without any help at all, saving several hundred pounds that are
better spent on lawyerly input for the more taxing considerations
such as the finances, or the children.

The only slight drawback, and it is slight, is the mandatory wait of 20
weeks between the application being made, and a request for conditional order being permitted. Although such a pause perhaps should be seen as a useful interlude to enable productive discussions regarding the finances and the children.

If you are considering divorcing it is advisable to contact a matrimonial solicitor as early on in your legal process as possible. Please get in touch if you would like to talk through your options and identify the best way forward
for you and your family.

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