What is no fault divorce?
A ‘no fault’ divorce is one in which the partner within a marriage - who is asking for the divorce - does not have to prove that the other partner did something wrong.
Now there is only one ground for divorce
Instead, your petition (now called application) will simply cite the irretrievable breakdown of the marriage as the ground for divorce. You will no longer be able to cite factors of adultery, behaviour or separation.
Legislation to bring about a no-fault divorce option, became available to couples on 6 April 2022, having been passed into law on 25th June 2020.
- Eradicate the blame game
- Important changes to divorce law
- Defending divorce proceedings
- Does this give too much power to the person who wants a divorce?
- Is no fault divorce a good thing?
- Will no fault divorce impact me?
- Financial arrangements in divorce
- Pension funds are key to establishing a ‘fair share’
- The importance of seeking independent financial advice
For people who’ve reached the conclusion it’s better to divorce, to be able to do so without having to wait and apportion blame, is a positive step. This will likely benefit any children of the family because of the focus on separation, instead of blame. The emotional impact of divorce is a huge challenge for many and it’s rarely taken lightly, particularly where children are involved.
Blame and fault as to the end of a marriage is now almost entirely irrelevant when resolving the financial issues which need to be addressed in the divorce. This is a very helpful change because in the past when blame was actively required to start the process, there was a tendency to bring questions of ‘blame’ into the financial negotiations.
The changes certainly do remove much of the emotional content of divorce applications. In summary, the changes:
- remove the requirement to provide evidence of poor conduct or separation
- fundamentally restrict the ability to contest divorce proceedings
- remove the ability to defend the decision
- allow applications to be made jointly if they wish, or solely if they do not.
At the moment, a respondent (the receiver of the application for divorce) can defend proceedings if they do not wish to divorce. In which case, the court must assess whether the fact cited in the petition can be proven on a balance of probabilities. However, the new law, will (save for exceptional circumstances) only allow people to defend a petition on a very limited basis:
- lack of jurisdiction
- marriage is not valid (so annulment proceedings are required and not divorce)
In order to balance this shift towards one person alone being able to get the divorce, the new legislation introduces a mandatory 20-week cooldown period which is called a period of reflection. This runs from application at the start, to the conditional order (currently termed ‘Decree Nisi’) which is the document that establishes that the divorce can go ahead. This is the point where couples can submit what is called a consent order, which deals with their financial claims relating to the marriage. The consent order is submitted to the court for approval and sealing. Once you have the conditional order, the applicant(s) will then have to wait six weeks and one day before applying for the final order (currently termed Decree Absolute).
The vast majority of family lawyers believed the laws surrounding divorce should be changed, to allow couples to separate without having to apportion blame to each other and without having to wait at least two years before they can divorce. Divorce is difficult enough without either party being blamed for causing the end of a relationship, particularly when couples have simply grown apart. The legal requirement (which has been the case to date) to assign blame can make it challenging for couples to reach an amicable agreement. It's also true that it's often been a distraction for legal professionals, whose focus is to resolve more important issues in a constructive way.
At Tees, the family law team is pleased with this new legislation because it will help people to deal with this difficult period without the added strain of apportioning blame. It will allow people to concentrate on being able to resolve matters in relation to finances and children, without adding upsetting reasons in the divorce application.
In addition, there is a consensus among family law professionals that the end of the archaic legal language of ‘Decree Nisi/Absolute’ and ‘Petition/Petitioner’ is very much welcomed and makes the process much more accessible and understandable.
Prior to this recent change in the law, the most recent legislation governing divorce was approaching 50 years old. The last divorce legislation was brought into effect in 1973 and was designed to reflect the society of the time and the disapproval of the breakdown of a marriage. No one could suggest that society has not significantly changed in this time and that what was once considered taboo or frowned upon is no longer the case.
If you are already in divorce proceedings, then there will be no impact on your divorce or its progression. If you are about to start a divorce process, you need to bear in mind the court portal will close in order to prepare for the new divorce rules. You should therefore begin to prepare your divorce application on the basis of the new rules. Our specialist divorce lawyers can help you with your questions.
Couples who are divorcing often find themselves under increased emotional stress, and they often fail to fully consider the financial impact of their separation. As a result, decisions that are made can have a long-lasting impact on the opportunity for financial security in the future.
Now that no-fault divorce has passed into law, this offers hope for couples who have decided to separate that they can to do so with less conflict and stress. This we hope will help with the process of making important financial decisions about major financial assets, most notably pension arrangements, which can turn out to be detrimental - more often negatively affecting women rather than men.
Assets held in pension funds are of vital importance when calculating a ‘fair share’ between couples. These funds are often the second most significant assets owned in a relationship after the family home - and can sometimes be the largest. And yet, they are all too often overlooked when it comes to establishing a financial settlement. Often couples put greater focus on splitting tangible assets, like property, with many under-estimating the impact of mismanaging the split of a pension in divorce.
The law gives the courts wide powers to vary on divorce the way in which pension funds are held by the parties so that fairness can be achieved. This may well involve a varying of the shares held by each party in the capital value of the funds, as well as how the income derived from the funds will be distributed.
It is alarming that very few people actively seek specialist independent financial advice on divorce. The impact of this is that many people are missing out on vital pension benefits, with the risk more likely to impact women than men given they often have a less sizeable pension of their own.
If you are going through a divorce, make sure you seek professional advice, both legal and financial as the importance in planning your finances for life after your divorce has been completed cannot be over-emphasized.
At Tees we combine independent financial advice with expert legal advice so you get a fully-joined up view. Our independent financial advisers are experienced in dealing with pensions as part of advising on the settlement of the overall financial arrangements on divorce. Sometimes the pension arrangements involved in divorce settlements can be complex depending on your circumstances and that’s where our experts can provide you with guidance to ensure that your interests are fully protected.
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Chat to the Author, Clare Pilsworth
Partner, Families and Divorce, Cambridge officeMeet Clare
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