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No-fault divorce

This information only applies in England and Wales.

The Divorce, Dissolution and Separation Act 2020 is set to come into force on 6 April 2022 and will radically modernise the process of separation for couples in England and Wales.

The current model for divorce in England and Wales operates on a ‘fault-based’ system. This means that couples must prove that their marriage has broken down and cannot be saved (referred to as ‘irretrievable breakdown’) on the basis of:

  • unreasonable behaviour, eg refusal to contribute towards shared living expenses

  • adultery

  • desertion

  • 2 years’ separation (if the other spouse agrees to the divorce) 

  • 5 years’ separation (if the other spouse does not agree to the divorce) 

The current system has no option for couples to submit a joint divorce petition. Instead, the law requires one partner to identify a fault in the other’s behaviour or actions, and provide evidence for it. This fault can then be contested by the other partner, drawing out the process and increasing costs. The option to contest divorce has long been an obstacle for individuals trapped in abusive or coercive marriages.

Where no fault exists, couples wanting to separate amicably must live separately for a minimum period of 2 years before the divorce process can begin. 

This minimum period increases to 5 years where one partner disagrees. The period of separation is impractical for couples who cannot afford to live in two properties at the same time before a financial settlement has been agreed. 

The current model has been criticised for being too long and difficult. It can also be damaging where children are involved as couples are actively encouraged to identify faults in their marriage, creating animosity between partners where there doesn’t have to be.

The 2020 Act aims to update the divorce process, the key changes being:

  • the irretrievable breakdown of marriage being evidenced by a sole or joint statement alone

  • no option for one party to contest the divorce

  • terminology being modernised to make family law more accessible to the public 

  • the timeline of the divorce process being reformed

Statement of irretrievable breakdown

No-fault divorce still focuses on the same concept of ‘irretrievable breakdown’, but removes the need to assign fault. Instead, the breakdown can be proved by a sole or joint statement signed by one or both partners. No further evidence is required to prove that the marriage has broken down. 

No right to contest

The new law also removes the option for one partner to contest divorce, as the sole statement of an irretrievable breakdown by a single partner is sufficient grounds for separation. This tackles unnecessary obstacles to separation that have previously left individuals trapped in unhappy marriages.

New terminology

Key terms have been modernised to simplify the process, for example:

  • ‘decree nisi’ is renamed ‘conditional order.’

  • ‘decree absolute’ is renamed ‘final order.’

  • individuals submitting the application for a divorce are renamed ‘applicants’ rather than ‘petitioners.'

Updated timeline

The timeline for a separation process has also been streamlined. 

There will be a 20 week period of reflection from the start of proceedings to the granting of a conditional order. This is intended to give couples a chance to seek counselling services, reconcile their differences and/or consider financial and child arrangements post-separation. 

After the conditional order is granted, there is an additional 6 week period before the final order. 

Therefore, the minimum amount of time for the divorce process to take place is 26 weeks, or roughly 6 months. However, the new legislation retains the previous rule that an application cannot be brought within the first year of marriage.

Separation agreements

If you are considering a divorce, you may also find our guide on Separation agreements useful to minimise risks and avoid unnecessary stress further down the line.

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