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No fault divorce – possible from Spring 2022

Insights / / Mayfair (London)

From 6 April 2022, married couples, including those entered into civil partnerships, will be able to divorce without blaming one party or adhering to the current separation period requirements.

The current grounds for divorce are:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • You’ve been separated for at least two years and you both agree to proceed with a divorce.
  • You’ve been separated for at least five years

When parties take the difficult decision to divorce, it is most people’s hope that it can be dealt with without animosity and without blame. This is not only for their benefit but for the benefit of their children and to reduce costs. The current process makes that difficult because if the required period of separation and/or consent has not been met then you have to pick one of the fault-based reasons for divorce, namely adultery or unreasonable behaviour. By having to apportion blame it starts proceedings off in an adversarial and often costly manner.

Period of reflection

The new no fault divorce removes the blame and allows both parties a period of time to come to terms with the decision they are taking. Nothing starts the divorce process off worse than one party who is raring to go and get matters concluded as quickly as possible, whilst the other has not yet come to terms with the fact that the marriage has broken down. Under the new rules, it seems likely that once a petition has been issued, there will be a six-month period of reflection, during which parties can get used to their new lives and ensure they are comfortable with the decisions they are taking.

Separation periods to become void

Doing away with the current fault based grounds and periods of separation will stop the situation where one party can force the other to remain married. The well-publicised case of Owens v Owens (2018), highlighted the problems faced by many in that situation, where one party contested what the other party had stated was unreasonable behaviour.

There will still be challenges open under the new system. They will relate to jurisdictional issues, legal validity, fraud, cohesion or procedural compliance. It is likely the same rules, when they change, will apply to civil partnerships.

Overall, to be able to commence a divorce without hostility, and for parties to have six months to come to terms with their change in domestic arrangements can only be a positive. It provides time for meaningful reflection, takes some of the initial heat out of the situation, removes blame and hopefully provides time to sort out finances and matters relating to children calmly.

To discuss your family situation and how we can help please get in touch.

Emma Morris

Emma Morris Managing Associate

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