The introduction of no-fault divorce in England and Wales has now arrived after over 30 years of campaigning by some family lawyers and other campaigners.
Up until now the rules in England and Wales meant that anyone who wanted to divorce or end their civil partnership would need to rely on one of the five facts, commonly referred to as adultery (not available in same-sex marriages or civil partnerships), behaviour, desertion, two years separation with consent or five years separation. Although rare, divorce proceedings could be defended in cases where the other party to the proceedings disagreed with the allegations made, notwithstanding the fact that such arguments rarely impact the financial claims arising out of the breakdown of a marriage or civil partnership.
Those that have campaigned for a change in the law have argued that initial arguments concerning which of the parties was to commence divorce or dissolution proceedings, and on what basis, would increase the level of animosity between the parties, leading to an increase in legal costs and also making it harder for couples to reach agreement over important issues such as finances and arrangements for any minor children of the family.
Under the new rules, an application for divorce can be presented by one of the parties, or by both parties jointly, without a reason for the breakdown of the marriage being provided, and without apportioning blame. All that is now required is a statement to the Court that the marriage has irretrievably broken down. It is now not possible to defend the proceedings, save in limited circumstances, such as where there is an argument concerning whether the Courts in England and Wales have jurisdiction to deal with the matter. However, a 20-week cooling-off period has now been introduced, meaning that the Conditional Order (formerly known as the Decree Nisi) cannot be applied for until at least 20 weeks have elapsed from the date the application is issued. It remains the case that divorce or dissolution proceedings cannot be initiated unless 12 months have elapsed from the date of the marriage or civil partnership.
Although the introduction of no-fault divorce represents a significant change to the law, which many will argue is long overdue, those contemplating a separation will still need to ensure that issues concerning finances and children are properly addressed, and there are a number of options available to separating couples for doing so. Specialist advice from a family lawyer should still be sought at an early stage with regard to these issues and before divorce or dissolution proceedings are issued. It is these issues that often take the most time to resolve.