Can I have a No-Fault-Divorce?

On the 26th of June 2020, the Divorce, Dissolution and Separation Act 2020 received royal assent and became law.

The aim of this piece of legislation was to introduce the concept of “no fault” divorce into English Law. However, the current timetable for its implementation is estimated to be “Autumn 2021”.

Under the current law, if the parties have been separated for less than 2 years or they are not in agreement that they should be divorced, a petitioner (the person bring the divorce) must show that the marriage has irretrievably broken down and support this on the basis of the fault of the other party.

"Grounds for Divorce" are:

1. Adultery – the petitioner must show that there has been adultery and they find it intolerable to live with their partner.
2. Unreasonable Behaviour – the petitioner must show that their partner has behaved in a manner that makes it unreasonable to expect the parties to continue to live together.
3. Desertion – the petitioner must show that they have been deserted by their partner (this cannot start until two years after the separation.

If a petitioner is not able to, or does not want, to allege one of the above reasons, then the only option open to them is two wait two years and seek their partner’s consent to the divorce or wait 5 year, if their partner will not agree. It is, therefore, possible to obtain a “no fault” divorce within the current system, but it requires the parties to separate and wait two years, which is often intolerable to couples.

Until divorce proceedings have reached the stage of Decree Nisi, the courts cannot make financial orders. This means that, where parties separate with a view to commencing divorce proceedings in 2 years, they are left with imperfect ways to resolve their financial matters, until the divorce is granted. For many people, it is not possible to live in two separate households for two years without a resolution of financial claims.

However, there is a work-around that it utilised by solicitors, that can enable parties to start divorce proceedings immediately will still attempting to maintain an amicable separation. This is to assist the parties in agreeing a set of “unreasonable behaviours” that are acceptable to both parties and would satisfy the court that the marriage has irretrievably broken down.

Unless very severe grounds are put forward, such as criminal activity or significant financial abuse, the grounds stated in the divorce petition do not have a effect upon any future financial settlement or child arrangements. The unreasonable behaviour is a technicality, that allows the parties the divorce.

If both parties can accept this, then there is nothing to say that divorce proceedings cannot proceed smoothly. Indeed, it is possible for a respondent to a petition to even state that they do not agree with the facts, but that they are content for the divorce proceedings to continue.

However, even though the provision of grounds for divorce are a legal formality, the process of agreeing who is divorcing whom and on what grounds can be, at best, awkward, and, if one party simply does not accept that there should be a divorce or will not agree the grounds, it can be a very frustrating process that can needlessly increase the acrimony between couples.

Therefore, despite the Divorce, Dissolution and Separation Act being good law, currently, there is no option for couples to have a “no-fault” divorce, without waiting two years.

For couples looking to have a amicable separation, they must consider the following options:

1. Separate for two years and once the two years separation has been completed, apply for a divorce.
2. Wait until the No-Fault divorce is implemented, currently scheduled to be in Autumn 2021
3. Find a set of reasons that could be agreed between the parties to support a petition based on unreasonable behaviour, with each party understanding that the facts themselves are a technicality.

Every couple and every divorce are unique and there is no “one size fits all solution”. Of the above routes only one may be applicable to one couple and all to another.

Although technically important, the divorce proceedings themselves are often the least time-consuming part of a separation and have the least effect upon the parties lives following the separation (compared to financial and/or children proceedings). It is always worth speaking to a solicitor to ascertain which solution is the most appropriate to your case and the consequences of each course of action.

Watson Thomas Solicitors have offices in Fleet, Guildford, Bracknell, Camberley, Farnborough and Woking.

Watson Thomas are a dedicated team of Family Lawyers who specialise in all types of family disputes. For advice about No-fault divorce or the other options, please do get in touch.

Our staff can work from home and access all systems so even if all are required to self-isolate this will not affect the day-to-day running of your case. We can also hold appointments via telephone and video conferencing, as needs be, to ensure that your service is not interrupted.

If you would like to discuss your current situation with an expert family lawyer, please call us on 0330 311 9849.

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