Impact on finances
Impact on children
Thirty-year campaign for law reform
Cost and accessibility
No-fault divorce came into force on 6 April 2022, giving separating couples a less acrimonious divorce process, as they no longer need to apportion blame for the breakdown of their marriage. The reform is not intended to establish a means for a quick divorce but an "end to the blame game", meaning a kinder process.(1)
This article explains the change in the law and the benefits for separating couples and their children.
It is beneficial that couples, who usually think thoroughly about their decision, will now be able to apply jointly. Previously, where only one party wanted to apply for a divorce, there may have been many months of discussion before taking that step, as to who would be the petitioner.
There is, however, a six-month minimum period imposed for those seeking a no-fault divorce, to allow time to deal with issues arising from the divorce, including relating to finances and children. It is important to seek competent advice and not rush the process, particularly in relation to pensions. Currently, only approximately 41% of divorcing couples have a financial order on divorce and only about 12% deal with pensions, which is particularly concerning.
Research shows that women generally are more likely to have emotional attachments to houses and men to pensions, which means that women quite often are willing to make disadvantageous trades. Therefore, it is important to seek the appropriate actuarial advice to properly value the pensions and ensure a fair outcome when looking at all of the assets in a particular case. This process may well take longer than six months.
The previous law meant that, unless couples had been separated for at least two years, they needed to apportion blame to instigate divorce proceedings, which created a level of acrimony that invariably spilled over into discussions relating to finances, but more importantly in relation to children. Rather than the separation itself, psychiatrists explain that it is the management of the separation that most impacts the children.
One partner, or both, can apply for divorce without having to give a reason or apportion blame. This is an important shift in divorce proceedings, as it was often harrowing for couples to be forced to apportion blame. The new law makes this a kinder process.
Thirty-year campaign for law reform
The reform has taken so long to materialise, because it was not regarded as an election vote winner. The pressure for change grew only as a result of the case of Owens in 2018, once the potential injustice of the previous law was evident to the public. In Owens, the court refused an unhappy wife a divorce from her husband, despite his alleged unreasonable behaviour, because it was not adjudged that he had behaved sufficiently badly. On appeal, the Supreme Court made clear that the situation was unfortunate but said that their hands were tied because of the law as it stood, which they encouraged lawmakers to address.
The new divorce procedure is more accessible for couples. Once the decision to divorce has been made, couples can now go online and instigate the process themselves, and it is simpler than it was before.
However, legal advice should still be sought to resolve other important aspects surrounding finances and child arrangements.
No-fault divorce is not expected to diminish the importance of the constitution of marriage. Decisions to divorce are often made ignorant of the law, with many couples coming to solicitors not knowing the law or their rights and having reflected long and hard on their decision. There will likely be a brief increase in the number of divorces due to people waiting for the new law, but this is expected to settle down in the longer term.
For further information on this topic please contact Joanne Edwards at Forsters LLP by telephone (+44 20 7863 8333) or email ([email protected]).
(1) Joanne Edwards on BBC Radio 4's Money Box, 2 April 2022; the full interview is available here.