Divorce Week: No-Fault Divorce: Separation In The 21st Century

• Published date: 01 April 2022
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Law Firm: Burgess Mee
• Author: Ms Suzanna Brown

No-fault divorce, arguably the biggest reform to the law governing divorce in England and Wales in over fifty years, comes into force on 6 April when the Divorce, Dissolution and Separation Act 2020 becomes law. The Act received royal assent on 25 June 2020 but has been delayed until now as a result of the huge IT overhaul required to implement the wide-ranging changes.

The new law attempts to remove any requirement of blame from the formal aspect of the divorce process, following widespread criticism of the present system in England and Wales, which relies on the existence of one of the following five facts to prove the marriage has broken down irretrievably:

• adultery;
• unreasonable behaviour;
• desertion;
• two years' separation with the consent of the other party;
• five years' separation (no consent required).

(Same-sex couples have historically not been able to rely on 'adultery' on the basis of a technical definition but have been able to include any infidelity under the second category of 'unreasonable behaviour')

The present system has inevitably led to issues in a number of cases, with many voicing concerns that it exacerbates conflict and acrimony between spouses. For example, in the case of Owens v Owens [2018] UKSC 41 Mrs Owens had to wait for five years following separation before she could apply for divorce after her husband defended the divorce by challenging the particulars on which she had sought to rely.

The Divorce, Dissolution and Separation Act seeks to simplify the regime, and reduce anguish in what is often a stressful situation. Specifically, it will:

• remove the requirement to cite conduct or separation facts;
• remove the ability to defend the decision to divorce;
• permit joint applications for the first time;
• institute a new minimum overall timeframe of six months (or 26 weeks) to allow time for reflection and practical arrangements;
• change the legal nomenclature used for divorce to make the language more accessible to non-lawyers.

So, how will the new system work in practice?

1. It is likely that the vast majority of applications will be made online. Applications can be made by one spouse or by both spouses jointly. This may come as a relief to some couples who wish to avoid the arguments that can be caused by one spouse having to make accusations against the other, and reduce any feeling that one party is "in control". An application that starts out as a joint application can become a sole application if one of the applicants no longer...