Helen Bishop, Consultant Solicitor

The No Fault Divorce – The Big Family Law Shake Up

Boardman, Hawkins & Osborne LLP

The No Fault Divorce – The Big Family Law Shake Up… And not a day too soon!

It is exciting time for us as family lawyers  after years of the profession  petitioning for change,  one of the biggest reforms in family law in recent years is now only a few months away. On the 6th April 2022 the introduction of the No Fault Divorce will go live.

What does this mean?

This overhaul of the divorce law, will simplify the process, both in terms of procedure and language. The big change is that currently you need to support irretrievable breakdown with one or more facts of evidence, being Adultery, Unreasonable behaviour, Desertion, Two Years Separation whereby the respondent provides written consent, or waiting Five Years after separation. This evidence will no longer be required.

Why was the old procedure  such a problem?

When a marriage comes to an end, whatever the circumstances, the stress, anxiety and hurt on all parties and any children of the family  is high, and to exacerbate this by having to apportion blame to one of the parties is not helpful, and  more often than not increases the damage within the family in what is an already highly charged and unhappy  atmosphere.

The law was outdated and in addition to having to evidence blame, the system potentially locks individuals into empty and loveless marriages. This was clearly demonstrated in the case of Owens and Owens  [2018] UKSC 41 where a wife in her late 60’s  was refused a petition of unreasonable behaviour. This case went all the way to the Supreme Court.    The injustice of the Owens case due to the current law increased the appetite for change and the need for Parliament to take notice of the campaign for the ‘no-fault divorce’ and  to change the law.

And so here we are, hopefully coming out two years of a pandemic and about to embrace a refreshing change to Family Law.

So how will the new procedure look?

  1. The parties will simply need to provide a statement that the marriage has irretrievably broken down. No additional evidence of blame will be apportioned.
  1. The parties will have the choice of making an individual or joint application
  1. Parties will NOT be able to defend the application for divorce.
  1. There will be a “period of reflection” which will be a  minimum of 20 weeks from when the application is issued until when the conditional order is made.
  1. There will be a change in the language used in the proceedings. The term Decree Nisi will be replaced by Conditional Order, and the Decree Absolute will be replaced by Final Order. Simple Plain English terms that bring the law into modern times.  

How long will a No Fault Divorce take?

From issue of the petition to the Conditional Order being made, the period of reflection will be a minimum of 20 weeks. Once the Conditional Order has been granted the Final Order cannot be granted until 6 weeks after that date. So the procedure will take around 6 months, but it could take longer if the finances have not been agreed upon and incorporated into an order. Each case is different and we are here to deal with your individual needs.

So do I wait until April or do I issue now?

As there is a minimum 20 week reflection period between the application being issued and the Conditional Order being made, if you have already agreed on how the matrimonial finances will be divided and you are amicable about the evidence being used on the petition, then you may wish to issue under the old procedure. This is important to bear in mind, as a Consent Order cannot be considered until the Decree Nisi / Conditional Order has been granted.  If however you are in the early stages of negotiation, you may want to wait until April, and use the new procedure.

Whichever way you decide to proceed the team at Boardman, Hawkins and Osborne are here and ready to help you navigate your way through the procedure. If you would like more information on divorce, please contact one of the private law team at Boardman Hawkins and Osborne and we will be happy to assist.

Helen Bishop, Consultant Solicitor

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