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Insights

No fault divorce

Posted on 07th December 2020 in Family Law

Posted by

Tracy Lambert

Partner and Solicitor
No fault divorce

Under current law in England and Wales if you wish to divorce your spouse you have to prove that your marriage has ‘irretrievably broken down.’ In order to demonstrate that the marriage has irretrievably broken down parties have to rely on one of the five grounds for divorce (adultery, unreasonable behaviour, two years separation with consent, desertion, or five-year separation without consent).

Divorcing parties often find the divorce process difficult, unless the parties have been separated for a period of 2 years and agree to the divorce, one party has to effectively blame the other by addressing their bad qualities/behaviours for the breakdown of their relationship. This attitude towards divorce does not adequately reflect modern society and introduces an unnecessary element of delay or conflict in the divorce process.

Under new law, (expected to be implemented in autumn 2021) divorcing parties will no longer have to rely on one of the five grounds. As such, parties will be able to divorce on a no-fault basis. This change in the law is intended to simplify the divorce process and remove the option to contest the divorce. This new process will also reduce lengthier and drawn out divorces. Some of the key benefits in respect of no-fault divorce are provided below:-

  • A party will be able to produce a statement that the marriage has irretrievably broken down. There will be no requirement to prove this.
  • Either or both parties will be able to apply for a divorce. Under the current law only one party is able to apply for divorce as a petitioner.
  • The opportunity for one party to contest the divorce will be removed.
  • The court must accept the statement and make a divorce order. Previously judges were required to consider whether the facts provided were sufficient to prove that a marriage had irretrievably broken down.

At present divorcing parties are not able to divorce on the basis of no fault, unless relying on two years separation with consent or five-year separation without consent. If you are ready to divorce it is likely that you will be advised to continue through the current divorce system. However, there are some exceptions to this, which we would be happy to discuss with you.

For further information about any part of divorce and seperation, or to talk to one of our dedicated Family team, visit their hub page.

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