Why has no-fault divorce been introduced?
Many people regard the current divorce law as being out of date, as under the current law you must allege that the marriage has broken down due to one of five facts: adultery, unreasonable behaviour, desertion, separation for two years, or separation for five years. If you can’t or won’t allege to one of these faults then you need to have been separated for two years to get a divorce, providing both spouses agree to the divorce. If one spouse refuses, then you need to have been separated for five years.
A 2018 divorce case, Owens v Owens, highlighted how unfair the existing divorce law is. Ms Owens wished to divorce her husband after 40 years of marriage and two children, saying that the marriage was loveless and had broken down. She moved out of the former matrimonial home and filed for divorce, but her husband refused to end the marriage. Ms Owens appealed but the Supreme Court rejected her appeal, with the judge telling her she would be able to divorce her husband in 2020 when they would have been separated for five years and she would be eligible to divorce without consent or evidence of fault. This case prompted debate about whether divorce laws in England and Wales needed to change.
In addition, it is hoped that no-fault divorce will reduce conflict, allowing divorcing couples to focus on important matters like children and finances.
How do I get a no-fault divorce?
Firstly, we would suggest contacting a solicitor to discuss your financial and child arrangements. They will be able to advise and guide you on filing for a no-fault divorce. Applications can be made online or using a paper form. The process will be as follows:
- One, or both, parties give notice that the marriage has irretrievably broken down
- The party/parties will be given a 20-week cooling off period, after which they will decide whether to proceed with the divorce
- If proceeding with the divorce, the court can make a conditional order
- After a further 6 weeks the court can make a final order
How long does no-fault divorce take?
Compared to the current process, which can take around 3-4 months, no-fault divorce will take around 6 months. This is because under the new law there will be a minimum 20 weeks cooling off period between the initial application and the conditional order, and a further six weeks between the conditional order and final order. This cooling off period is designed to give couples breathing room to discuss practical arrangements or provide the opportunity for couples to reconcile.
How much does no-fault divorce cost?
If you were to apply for the divorce yourself, and providing the court fee stays the same, the minimum cost to get a no-fault divorce will be £593. The cost to instruct a solicitor will be slightly higher as you may be charged at an hourly rate or on a fixed-fee basis.
Do I need to instruct a solicitor for no-fault divorce?
The process of getting a divorce can be complex and emotional, and there are many factors to consider including finances, division of assets and child arrangements. We would always advise instructing a solicitor to guide you through the process, as we can talk you through legal and practical issues, as well as help you reach an agreement that is in the best interests of your family. We can also represent you in arbitration or at court to reach an outcome where you and your spouse can’t come to an agreement.
Should I wait for the law to change before I get a divorce?
If a couple who are still living together decides to get divorced under the current system, one of them will still need to accept blame for the marriage breaking down.
If neither spouse accepts blame or if only one spouse wants to divorce and the other refuses, then it would probably be best to wait until no-fault divorce comes into effect.
Can a no-fault divorce be contested?
Applications for no-fault divorce cannot be contested because the element of fault is removed.
What if I have already filed for divorce?
Divorce proceedings issued by the court on or before 5th April 2022 will continue to progress under current divorce laws, whether they were submitted online or via paper forms. Any applications submitted under the existing law that are not issued by the court before 6th April will be returned to the applicant, who will need to complete an application under the new law and its processes.
For your application to be issued under the existing law, paper and digital applications must be received by the court by 31st March, and urgent applications by 5th April.
If you need more guidance on divorce, contact our divorce solicitors today.
