No-fault divorce and the need for expert legal advice

Nicholas Clough, a leading UK divorce lawyer and Head of the Price Slater Gawne Family Law team, has specialist experience in the field of family and children law, particularly in the field of assisting high net worth individuals. He is highly regarded for her expertise in relation to the division of property and assets and in agreeing provisions for children. Here he explains why he welcomes “no-fault divorce” but warns that divorcing couples may not find it the answer to every problem.

No-fault divorce became law on 6 April, 2022.

What is currently involved in the divorce process?

Divorce is, pure and simple, the legal agreement that a couple are no longer married. Child arrangements and the division of assets has always been entirely separate, and there can be financial implications for those who get divorced before they sort these issues out.

Although in broad terms the new law would remove rancour and for many divorcing couples make the process less acrimonious, in essence all the associated challenges of divorce – particularly the financial aspects and child arrangements – would still need to be dealt with and, it is often those issues that causes the most arguments between the separating couples, not the reason for the divorce in the first place.

What will change with the introduction of no-fault divorce?

The no-fault divorce dispenses with what has always been known as the five facts upon which couples much rely in order to sue for divorce.

Currently, the law states that separating couples must live apart for a substantial period or show that one party is to blame for the breakdown of the marriage due to adultery, desertion, or unreasonable behaviour. The new bill, called the Divorce, Dissolution and Separation bill and which comes into effect on 6 April, removes the need to prove one of the five facts of divorce (adultery, unreasonable behaviour, desertion of two years, separation of two years with consent to divorce and separation of five years without consent) and instead only a statement of irretrievable breakdown will be needed.

In addition, it will be possible for the couple to file jointly, rather than it being solely one partner bringing the case.

Will the new law be successful in reducing animosity between separating couples?

Whilst the new law will potentially reduce animosity and that is to be welcomed, whether it will also prevent couples arguing about arrangements for dependent children, or the division of the couple’s assets – well, the jury is still out on those aspects.

Separating couples must think very carefully before they rush to divorce under the new law. According to the latest figures from the Office for National Statistics, the average duration of a marriage at the time of divorce is 12.3 years for opposite-sex couples. That’s a long time to maintain a relationship, and during that time it’s likely properties will have been bought and sold, assets built up during the marriage, children born to the couple and so on.

Facts to consider in relation to no-fault divorce

In my capacity as a family lawyer with more than 20 years’ experience, we are not only seeing a trend for couples to divorce one another using online platforms but also an increasingly high number of mature couples – those in their 50s and 60s – getting divorced, and both trends bring their challenges.

Possible reasons to delay the final order (currently known as the decree absolute) until financial settlement might be if one party dies after the decree absolute and before financial order, as the surviving party will no longer have automatic rights to pension provision such as widow benefits; or there is a risk of material prejudice to the other, for example, you can remove matrimonial home rights if an absolute has been granted.

Sometimes as soon as the divorce comes through one party wants to get married to their new partner immediately and they are of course free to do so, but if they marry and move into a property with that new spouse it may well affect their financial settlement. There’s a great deal to consider and I would caution anyone planning to rush to divorce this April to think very carefully before they do so.

The introduction of a cooling off period

I do very much welcome the increase in time for the cooling off period. There will be a new 20-week period introduced which begins from the date you issue your divorce petition. Only once that 20 weeks has elapsed can either party apply for a conditional order (currently known as a Decree Nisi, which is confirmation you are entitled to divorce). From the conditional order there is an additional six-week period before a final order (what was the Decree Absolute) is granted, severing the marriage or civil partnership.

If you are affected by any of the issues raised here, please do get in touch today FamilyLaw@psg-law.co.uk or call 0161 615 5554. We are here to help you.