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No-Fault Divorce - What should we now expect?

View profile for Jonathan Whettingsteel
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No-Fault Divorce - What should we now expect?

Today, ‘No Fault Divorce’ becomes legal.

Whilst arguably the biggest change to Matrimonial Law in our lifetime,  the big question is ‘What’s going to change?’  Partner and Family Law Specialist, Jonathan Whettingsteel, highlights the changes this new legislation will bring.

Grounds for Divorce

Currently divorce is granted on the ‘irretrievable breakdown’ of the marriage and this is evidenced in meeting one of five criteria;

  1. The other party has committed adultery
  2. The other party’s unreasonable behaviour
  3. Desertion
  4. Two years’ separation with consent
  5. Five years’ separation

Whilst the grounds for divorce will still be the irretrievable breakdown of the marriage, now it is no longer necessary to satisfy one of the five criteria. Instead parties can file either a sole or a joint statement of irretrievable breakdown.

Change of Procedure

Under the new procedure, once the statement of irretrievable breakdown has been filed, the Respondent has 14 days (extended from the previous seven) to file an ‘Acknowledgement of Service’ to confirm whether they are objecting to the divorce or not.

Parties must then wait 20 weeks (which is being viewed as a ‘cooling off’ period) before being able to apply for a ‘Conditional Order’, which replaces the current Decree Nisi.

After that, the same six week wait applies before parties can apply for a ‘Final Order’, which replaces the Decree Absolute to finalise the divorce.

How long will it take?

A divorce under the new procedure will take 26 weeks from start to finish. It is unlikely to be quicker, may in fact take longer, but there is discretion of the Court under the new legislation to shorten this period (without guidance on reasons why this may be permitted , but it could be if one party is well and has a shortened life expectancy.)

Is anything the same?

Some things do remain unchanged. Parties must still wait 12 months from the date of the marriage before being able to apply for a divorce. Likewise, the Court only has the power to make any Financial Orders after Conditional Orders have been made. The law and guidance in respect of the division of the matrimonial finances and assets remains unchanged.

What does this all mean?

It is thought the new rules and elimination of the requirement to apportion blame will mean less contentious divorces.

As parties can file either a sole or a joint statement of irretrievable breakdown this means the Respondent will not be able to use the threat of defending the divorce as leverage. The grounds for defending a divorce are now much more limited and are likely to be restricted to the Court not having jurisdiction or that a divorce has already been issued.

The new procedure and rules are likely to mean that if one party wants to leave and end the marriage then the other party should not be able to stop them.

If you want more information about these changes or to discuss whether to issue under the current legislation or new rules then contact one of our family team.