New “no fault” divorce laws in England explained

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Family lawyer Teresa Davidson welcomes new "no fault" divorce for clients
Family lawyer Teresa Davidson welcomes new “no fault” divorce for clients

The last time the divorce laws changed in England was almost half a century ago – but from April couples can separate without having to apportion blame.

At last this means couples who have decided to divorce can spend their time and money on working out an amicable parting and future for them and any children.

It’s known as the “no fault” divorce and comes into force on April 6, as part of wider changes to the divorce process brought in by the Divorce, Dissolution and Separation Act 2020, but behind the headlines and the legal rhetoric what does this actually mean for you?

Teresa Davidson, of Silk Family Law, who has been working in family law for over 20 years, said the change was welcomed by lawyers and couples.

She said: “Some couples have been waiting until the law change before getting divorced, for others the past two years of the pandemic have put a tremendous strain on family relationships and, whilst they have decided to separate, neither side wants it to be acrimonious.

“This is where the “no fault” divorce is going to come into its own.

“The majority of my clients do not want to have to go through a legal process in which they, or their spouse, has to “blame” the other in some way for the breakdown of the marriage. Most are seeking to divorce with dignity through a constructive, collaborative approach. Pragmatically, my clients often prefer to concentrate their time and their lawyer’s time (and fees) on working out the arrangements for their finances or children, rather than going through the history of their relationship breakdown,” said Ms Davidson.

Before the change couples wanting to divorce had to rely on one of five facts to prove that their relationship had irretrievably broken down. These facts were:

2 – Unreasonable behaviour

3 – Desertion for at least two years

4 – Separation for at least two years, with the consent of both parties

5 – Separation for at least five years even if one party disagrees there should be a divorce

This meant some couples having to wait before initiating a divorce, or, if they didn’t want to, it meant relying on ‘unreasonable behaviour’ – even when they felt the agreement to split was mutual.This often led to anger and resentment when grievances were aired, spilling over into and affecting negotiations about financial settlements and childcare arrangements, despite the reasons for the divorce having no bearing on those matters in most cases.

In other cases, people can feel stuck in their marriages because they wish to avoid acrimony and wait to rely on a period of separation.

The new law removes the requirement to establish one of the five facts, allowing couples to divorce with dignity and without attributing blame. Couples who have naturally drifted apart or decided they want different things in life are therefore welcoming the news.

For centuries English law has required separating couples to provide proof of a marriage irretrievably breaking down before the family court will grant a divorce – and sometimes the courts would disagree, meaning couples were forced to wait for two years before they could legally divorce.

Under this new law the ability for one party to contest divorce proceedings will also be removed in most cases – that means if one of you wants the divorce and the other doesn’t you can still petition for divorce.

This a welcome overhaul that should save money, time and most of all acrimony for couples. Couples can also make joint applications which is in line with many separating couples’ wish to remain amicable and to approach matters on a conciliatory and joint basis. There will be time included in the process for reflection but ultimately the law will trust individuals to decide if their marriage is over with less judicial scrutiny and discretion involved.

“No fault divorce” has been used in Scotland since 2006 where in general the system for resolving family disputes is seen to be less adversarial.

Why come to Silk Family Law?

Ms Davidson said: “For many people the decision to leave a partner follows years of anguish. There can be very serious and difficult issues to resolve, sometimes requiring professional mental health interventions or significant other financial and professional advice, but we have the experience and contacts to provide necessary support.

“Whilst we are hopeful this new legislation will go some way towards reducing the initial heat of acrimonious break-ups, in practice, ending the marriage is only the start. It is in the midst of arguments over children and money when kindness and compassion is often in short supply.

“Whatever happens, as family lawyers, we are here to smooth the process, temper excess and support our clients through every step.”

Silk Family Law partner Teresa Davidson can be contacted on [email protected] or 07712 937747.

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