No fault divorce is finally here – but what do the changes mean for practitioners?

No Fault Divorce is finally here. As of 6^th April, divorcing couples no longer need to have either been separated for the requisite period of time, or for one party to blame the other for the breakdown of the marriage. The new rules also apply to civil partnership dissolutions.

Under the old law, where a couple hadn’t been separated for at least two years, the Petitioner either had to rely on the fact that their spouse had committed adultery (only applicable for marriages), or more commonly that their spouse had behaved in such a way that they could not reasonably be expected to live with them. Now, under the Divorce, Dissolution and Separation Act 2020, one or both parties simply have to confirm that their marriage has broken down irretrievably. No further justification or facts are required.

This change has been a long time coming, as for nearly 50 years, we have relied legislation from the 1970s. Things have moved on since the Matrimonial Causes Act 1973 came into force, society has changed. We recognise that the breakdown of a marriage is not usually one party’s “fault”. Of course, there are notable exceptions (for example, where domestic abuse is involved, clearly the abuser will be at fault and not the victim), but generally speaking, laying all of the blame onto one party doesn’t reflect the lived experience of those who are divorcing.

For years, divorce lawyers have been giving our clients pragmatic and sensible advice when it comes to completing the divorce petition. We have told them not to use the petition as a means of “getting back” at their partner, or to make a point. Don’t deliberately raise the heat by making the particulars of behaviour especially spiteful or upsetting. We tell them that the petition is simply a mechanism for getting them divorced, nothing further. However, we have also appreciated that if the behaviour is too mild, then the petition might be rejected, so we’ve had to walk a difficult line. When we act for the Respondent, no matter how many times we tell them not to take the particulars of behaviour to heart as it’s just part of the process, our clients are human and can’t help but feel blamed and upset.

This new law is so welcome to divorcing couples and Family practitioners because it provides us with a constructive and understanding framework to help couples move through a horrible time in their lives. Of course, this change in the law can never take that pain away entirely, but it will certainly help to ease it.

So the changes are generally very positive. But we need to be aware that not all clients will be pleased. Some clients will have found the process of drafting the particulars cathartic, a sort of post-mortem on the marriage, and a way of helping them to process their thoughts. They wanted to hold their spouse accountable, either through adultery or their behaviour, and the new law takes this away from them. They may be disappointed not be able to lay blame, and may feel that their spouse has got off too lightly without taking any responsibility for their actions. As practitioners, we need to think about how we can help these clients to feel heard, and to work through their emotions surrounding the divorce in a constructive and healthy way. This may mean signposting them to other support services such as counselling and therapy. Perhaps it’s just taking some more time with them to acknowledge how they are feeling.

The new terminology is refreshing, and we now have plain English terms. No more Petitions or Petitioners, we now have Applications and Applicants. Decree Nisi is a Conditional Order, and Decree Absolute is a Final Order. We have an updated online system for making applications, and new, modern language. Divorce is a daunting process for our clients, and it’s exciting that as an industry, there will be less mystery and less decoding. Straightforward language and straightforward systems should bring positive changes for everyone.

The new system will be much more pleasant for practitioners, who can reassure their clients that the divorce process should be smooth, less confrontational with far fewer opportunities for their spouse to delay things. It should ease the burden on the Family court system, which is already over stretched, and, most importantly, it will help couples to bring their marriage to an end in a simpler, blame-free process.

Suzi Denton is a Family Law Expert at Irwin Mitchell