No Fault Divorce – what will happen in 2022?

13 December 2021

From April 2022, married couples in England and Wales will no longer have to rely upon the traditional ‘grounds for divorce’ and can petition solely or jointly for a divorce without having to ‘blame’ the other spouse for the relationship breakdown, or wait 2 or 5 years to lapse following their separation. This will be known as the no fault divorce.

In the case of Owens-v-Owens [2018] UKSC 41, the Wife petitioned for divorce on Mr Owens’ unreasonable behaviour. The court dismissed her allegations and ruled that her examples did not meet the criteria; her examples were the type of behaviour that would be expected within a marriage. This ruling was later confirmed by the Court of Appeal.

As a result of Mr Owens contesting the divorce, it forced Mrs Owens to wait until 2020 to petition on the grounds of 5 years’ separation.  Consequently, Mrs Owens was forced to remain married to Mr Owens even though it was very clear that the marriage had ‘irretrievably broken down’.  This definitive case was one of the catalysts to bring about change to the out dated divorce process.

What is no fault divorce?

The Divorce, Dissolution and Separation Act 2020 removes the requirement to establish a fact to achieve a divorce in England and Wales.

At present, to file a divorce petition in England and Wales, the petition must rely upon one of the following facts:

  1. The spouse’s unreasonable behaviour or
  2. The spouse has committed adultery or
  3. The spouse has deserted them for a period of two consecutive years or
  4. The parties have been separated for a period of two years and both parties consent to the divorce or
  5. The parties have been separated for a period of 5 years or more. The other spouse does not need to provide their consent.

If one of the above five facts cannot be relied upon, it is likely the divorce petition will be dismissed by the court, until the parties have been separated for a period of 5 years or more.

What changes will be made?

The new ‘no fault divorce’ will allow couples who have separated, for no other reason than they may have grown apart, to achieve a successful divorce in England and Wales without having to ‘blame’ the other spouse.  Within a no fault divorce petition, the applicant signs a statement of fact setting out that the marriage has irretrievably broken down.  The court is then to take this as conclusive evidence that the marriage has broken down and approve the divorce petition. The court will not require the consent of the other spouse nor a ‘blame’ factor to issue the divorce petition. The ‘no fault’ petition can be made jointly or solely by the spouses.  In addition to this, Decree Nisi as we currently know it, will be renamed a Conditional Order and the Decree Absolute is being renamed the Final Order.

Unlike the current divorce process, there will be a ‘period of reflection’ of 20 weeks before a conditional order can be made.  This will simply allow the parties to reflect on their position and to confirm whether they wish to proceed to a conditional order, and thereafter a final order, dissolving the marriage in full.

The new system is a great step in the right direction with the court system keeping abreast of modern society. Divorcing amicably, without fault, sets the appropriate tone for any children of the marriage and allows constructive negotiations on any financial matters that may follow.

If you would like any advice on this subject matter, please contact our Family Team.

 

 

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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