One year after its enactment, the No Fault divorce legislation in England and Wales holds significant implications for a divorce rate estimated at 42%
It is time that we now examine its impact. Especially since it is likely that this No Fault divorce legislation will have a large effect on a substantial proportion of the population, making it important to study the effects of the change.
The need for No Fault divorce legislation
Prior to this legislation being introduced, unless they were willing to wait for two years after separating, a divorcing couple had to play ‘the blame game’, finding grounds to separate based on faults such as unreasonable behaviour and adultery.
Perhaps not surprisingly, this often led to heated battles and character assassinations, adding tension and volatility to an already difficult situation.
‘No Fault’ divorce legislation was brought in after a 20 odd-year campaign to remove some of this heat and allow separating couples to divorce in a conciliatory, rather than antagonistic, manner.
Whilst some couples may have good reason to place fault with their former partner, many did not, and being forced to find fault where none existed created upsetting and often stressful situations for couples who wished to separate amicably.
Increase in divorce applications and influence of new legislation
‘No Fault’ divorce came in just as the divorce application system went online, leading critics to believe that it would usher in a boom of separations.
Whilst there has indeed been an uptick in divorce applications, a five per cent increase in Q4 of 2022 compared to Q4 of 2021, it is difficult to say whether this is due to the new legislation or not.
This is because many couples put off filing for a divorce during the Covid-19 pandemic, creating a bottleneck that may still be clearing.
There could also be a slight surge due to couples waiting for the ‘No Fault’ divorce legislation to come through, who remained married until they could utilise the new divorce process for themselves.
Unexpected consequences and challenges ahead
There are many other benefits to this new legislation.
For example couples separating in a calmer legal setting, and with many choosing to explore mediation, collaborative law and arbitration to solve outstanding children and financial issues, away from the heated environment of court.
However, there are some challenges too. As with all new legislation there have been some unexpected consequences that should be monitored as time goes on.
One of these is the length of the new process, as it involves a mandatory 20-week timeframe to be observed after the application has been filed.
Whereas previously a divorcing couple could split in as little as three months (with the right legal team and cooperation from all), the ‘No Fault’ process often takes six months to complete as standard.
However, a recent case involving a terminally ill applicant saw this mandatory timeframe reduced to 10 weeks – and there may be scope for flexibility in extreme circumstances such as this to be built into the legislation moving forward.
Another unexpected consequence has arisen due to the application system being moved online.
Whilst this has no doubt made the process easier for many, it has created some issues that experts will need to take note of.
Removing the complexity from divorce applications and paring them back to the bare bones could mean that applicants are less likely to seek appropriate legal advice, believing that the new simple system will take care of everything for them.
Ongoing financial claims: The importance of professional guidance
However, it is important to remember that divorce only ends the marriage, and that financial claims remain live and unresolved even after the divorce has been granted.
Without the proper professional guidance on sharing pensions and other assets, applicants could find themselves out of pocket and unaware that they still have any claims.
This could see vulnerable people who may not have a thorough knowledge of divorce proceedings slipping through the cracks, ending their marriage with very little.
Equally, it could lead to a nasty delayed shock for others, as financial claims remain live unless a court order concludes them or the Respondent remarries.
As former spouses are able to raise claims years after divorcing, it is strongly recommended that anyone applying for a divorce has the right support from appropriate advisors.
Future of ‘No Fault’ divorce: Global adoption
A year on, it is clear that some refinement to the ‘No Fault’ divorce legislation will occur, potentially around foreshortening the 20-week reflection period and when this would be possible.
As well as ensuring that vulnerable applicants do not slip through the cracks and end their marriages without their full due.
However, with an almost 20-year build up, ‘No Fault’ divorce looks like it’s here to stay.
With many countries besides the UK taking the same approach, it could well be the answer to removing the sting from many divorce cases, resolving an unnecessarily painful process for millions of separating couples.
This piece was written and provided by Katherine Marshall, family partner at law firm, Shakespeare Martineau
