Divorce Without Fault – Lexology

It is widely accepted among practitioners that this long-awaited and much-needed reform is the greatest upheaval in divorce law in the past 50 years. From April 6, 2022, the new no-fault divorce law in the UK will allow separating couples to be able to obtain a divorce, dissolution of civil partnership or legal separation without having to blame themselves for the breakdown of their relationship. their relationship.

The current law

Under current law, couples wishing to separate in the UK must rely on one or more ‘facts’ to prove that their relationship has broken down irretrievably. These facts are:

  • Unreasonable behavior
  • Adultery (not available for dissolution of civil partnership)
  • Desertion for at least 2 years
  • Separation of at least 2 years with the consent of both parties
  • Separation of at least 5 years even if one of the parties does not agree

This means that unless a couple lives apart for at least 2 years, they can only divorce if one person blames the other for this irreparable breakdown in their marriage, and this must fall into the category of adultery or unreasonable behavior. This legal obligation to effectively allocate blame makes it harder for couples to come to an amicable agreement at an already difficult and often emotional time.

The new law

1. Removal of the defect

Under the new law, no-fault divorce removes the element of fault or blame from the divorce process. This means that separating couples will no longer have to rely on any of the “five facts” to prove the ground for divorce – the irretrievable breakdown of the relationship. This will hopefully encourage a more conciliatory, constructive and non-confrontational way of resolving divorce and separation proceedings.

2. File for divorce jointly

Currently, one spouse must initiate divorce proceedings against the other, but the new law means that couples will be able to file for divorce jointly where the couple both agree that the relationship has broken down irretrievably (plaintiffs will be able to always submit a single request if their partner does not agree).

3. New Terminology

Some of the divorce terminology has also been updated. For example, the “Nisi decree” will become a “provisional order”, an “absolute decree” will become a “final order” and the person who asks for the divorce will be called the plaintiff, instead of the petitioner.

4. Take away the ability to challenge a divorce, dissolution or separation

Currently, if the person filing for divorce cites their spouse’s behavior or a period of separation as grounds for divorce, their spouse can challenge that and potentially prevent a divorce. Under the new no-fault divorce system, this option will be removed.

5. There will be a minimum of 20 weeks between request and conditional order

With the new timescales, most couples will have to wait around 6 months for their divorce or dissolution to be finalized. This period is meant to be a period of reflection for both parties to determine if they really want to separate and possibly work through their differences before committing to a divorce.

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