This month marks two years since the introduction of no-fault divorce, the biggest overhaul of family law in 50 years. Family law practitioners up and down the country campaigned for change, stating that the previous law (which had been in place since the 70s) was not only obsolete, but was actually detrimental to divorcing couples. Prior to the change in April 2022, the petitioner had to blame their spouse for the breakdown of the marriage, either for unreasonable behaviour or adultery, unless they were happy to wait 2 years and use the fact of 2 years separation with consent. Clearly, in a time when practitioners are told to do all they can to help parties separate as amicably as possible, starting off by blaming the other for leaving the toilet seat up or never emptying the dishwasher did not get matters off to the best start.
All this change sounds promising, but how has it been working in practice?
You can no longer blame the other party, no matter how much you want to
One of the most common complaints about the new law from clients is that they can no longer blame the other party when, in their eyes, they have done something wrong. Whilst the new law takes away the necessity to blame someone, it has also taken away the option of blaming someone too. You simply cannot cite adultery or unreasonable behaviour under the new model, there is nowhere to put it on the application. Whilst this has made some clients feel dissatisfied, it is worth highlighting the fact that, even before the change, citing adultery or behaviour in the petition did not have any bearing on the financial aspects of the divorce. It did not in any way give the other party a benefit in the financial remedy proceedings, it was simply the fact stated for the marriage breaking down irretrievably.
There is no defence
You cannot defend a divorce anymore because there is not a fact like adultery or unreasonable behaviour to contest. The petitioner has cited that the marriage has broken down and that is all that is required. Under the old law, it was possible to defend a divorce, as in the high-profile cases of Tini and Hugh Owens (Owens v Owens [2018] UKSC14.) The new law removes the ability to contest an application unless there is a dispute over jurisdiction. As the applicant, you do still have to prove service on the respondent if they do not return the acknowledgement though.
It still takes a really long time
The average time for a no-fault divorce is 7 months. You might be thinking “hang on, if there is no blame attributed and no defence to a divorce, why does it take so long?” The answer is simple; Court delays. Although applications are now dealt with on the portal, digital divorces are not quick. There is a statutory delay built in which means that from the moment the Court process your application and give you a case number, you enter a 20-week holding period until you are able to move on to the next stage of applying for the conditional order. This is partly a reflection period and partly to manage caseloads at the Court. It is important to factor this in when separating as this can cause a delay to the financial orders being implemented.
The new law certainly isn’t perfect and, as with everything new and shiny, there are some teething problems with the Government portal, but overall, the Divorce, Dissolution and Separation Act 2020 has done everything it promised to do. It has removed the blame game and allows parties to deal with divorces themselves, cheaply, efficiently and without unjustly apportioning blame simply to satisfy an archaic tick box exercise from the 70s.
If you would like any advice about divorce or separation, call our family team on 01243 786668 to arrange a free, no obligation 30-minute consultation.
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