Overview of No-Fault Divorce
The law in England and Wales changed significantly in April 2022 with the introduction of the no-fault divorce system. Under the current process, a spouse does not have to allege adultery, unreasonable behaviour or another specific reason for the breakdown of the marriage.
Instead, the legal basis for divorce is that the marriage has broken down irretrievably. One spouse can make a sole application, or both spouses can apply jointly.
At SWM Solicitors, we assist clients with no-fault divorce applications and the related financial and family issues that may arise when a marriage comes to an end
What is a no-fault divorce?
A no-fault divorce allows a married couple to end their marriage without one spouse having to make allegations about the conduct of the other.
The Divorce, Dissolution and Separation Act 2020 removed the previous requirement to establish one of the five facts traditionally used to demonstrate irretrievable breakdown. The current system instead allows the applicant or applicants to provide a statement that the marriage has broken down irretrievably.
This means the divorce process is not based on proving who was responsible for the relationship ending.
The change was designed to remove the need for spouses to make allegations about each other’s behaviour simply to obtain a divorce.
Who can apply?
In England and Wales, you can generally apply for divorce if you have been married for more than one year, your marriage is legally recognised and the relationship has permanently broken down.
The current system also permits joint applications. A couple who agrees that the marriage should end can therefore progress the divorce together, while either spouse can also make a sole application.
The existence of a no-fault process does not mean that every aspect of a divorce is automatically agreed. Financial and children matters may still require separate negotiations or legal proceedings.
The no-fault divorce process
The process begins when the divorce application is submitted to the court.
Once proceedings have started, there is a minimum 20-week period before the parties can apply for the conditional order. This period provides time to consider the implications of the divorce and address matters such as finances and arrangements for children.
The conditional order is an important stage in the proceedings, but it does not itself end the marriage.
Following the required period, the applicant can apply for the final order. The final order legally ends the marriage. Current guidance confirms that the final order should be considered alongside financial arrangements, particularly where financial claims have not yet been resolved.
No-fault divorce does not mean no financial issues
One of the most important points to understand is that a no-fault divorce deals with the ending of the marriage. It does not automatically resolve financial matters.
A couple may still need to address:
- The family home
- Other property
- Savings and investments
- Pensions
- Debts
- Spousal maintenance
- Child maintenance
- Other financial claims
If the parties agree, their financial arrangements can be recorded in a consent order and submitted to the court for approval. The court must approve the order before the agreement becomes legally binding in the appropriate circumstances.
Where agreement cannot be reached, a financial remedy application may be necessary.
Why timing matters
The timing of financial arrangements can be important.
In some circumstances, obtaining the final order before financial matters have been properly considered can have consequences, particularly in relation to pensions and other financial rights.
This does not mean that every couple must resolve every financial issue before the divorce itself can proceed. However, the relationship between the divorce process and financial claims should be considered carefully.
SWM Solicitors can advise on the appropriate sequence of steps based on your circumstances.
No-fault divorce and children
The no-fault divorce process does not determine arrangements for children.
Parents may need to make separate arrangements regarding where children live, how they spend time with each parent, education, holidays and financial support.
Where parents agree, arrangements may be made without court proceedings. If agreement cannot be reached, specialist family law advice can help determine whether negotiation, mediation or court proceedings may be appropriate.
The divorce itself does not determine which parent is responsible for the breakdown of the relationship, nor does the no-fault system require allegations about parental conduct simply to obtain the divorce.
Can a no-fault divorce be contested?
The introduction of no-fault divorce significantly changed the ability to oppose a divorce simply because one spouse does not want the marriage to end.
The court process is not generally based on proving that one spouse caused the marriage to break down. There can nevertheless be limited legal issues concerning matters such as jurisdiction or the validity of the marriage.
If you receive a divorce application and are unsure what it means for you, obtaining legal advice promptly can help you understand your position and any response that may be required.
How SWM Solicitors can assist
SWM Solicitors can guide you through the no-fault divorce process and help you understand the legal matters that sit alongside the application.
Our work may include preparing or responding to divorce applications, explaining the different stages of the process and advising on financial arrangements and issues concerning children.
Where a financial agreement is possible, we can assist with the legal documentation required to formalise it. Where agreement cannot be reached, we can explain the available routes for resolving the dispute.
The no-fault divorce process may have removed the need to establish blame, but it has not removed the importance of obtaining appropriate legal advice about the consequences of ending a marriage.