No-fault divorce transforms separation in England & Wales

Article 24 February 2022 Experience: Divorce and family lawyers

Divorce law in England and Wales is changing. The Divorce, Dissolution and Separation Act 2020 (DSSA 2020) is to come into force in April 2022. It aims to make divorce an easier and less acrimonious process by removing the need to assign blame when starting a divorce.

Under current divorce law, to establish that a marriage has broken down irretrievably, one or more of five facts must be proved. Three facts are based on fault, i.e. adultery, unreasonable behaviour and desertion; and two facts are based on a lengthy period of separation (2 years’ separation with consent or 5 years’ separation without consent).

The new law keeps irretrievable breakdown as the sole ground for divorce but replaces the five facts with a single notification/application process. No evidence to prove the relationship breakdown will be required.

There will remain limited circumstances in which divorce proceedings may be challenged, such as a lack of court jurisdiction, but it will no longer be possible to ‘defend’ a divorce on the basis that the marriage has not broken down.

The new divorce law allows an application for divorce to be made by one spouse, or for the couple to make an application together where the decision to divorce is mutual. So for the first time, a couple will be able to apply for divorce jointly.

To provide couples with a period of reflection, there will be a minimum time frame of 20 weeks between the start of proceedings and the ‘conditional’ divorce order (previously decree nisi). After that, following a further 6 week period, an application for the final order for divorce (formerly decree absolute) will be possible.

With these new timescales, the divorce process could take approximately 6 months, and it will remain important for separating couples to discuss and address parenting issues and financial matters once the decision to divorce is made, with the right information and appropriate advice.

The current divorce procedure will continue to apply until the reforms under the new law take effect. This means that any divorce petitions issued before 6 April 2022 will need to establish that the marriage has broken down irretrievably by proving one or more of the five fault-based or separation facts. Some may prefer to delay starting divorce proceedings until the new law takes effect.

Whatever the situation, we have the expertise to help you decide what is right for you and your family.

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