As I mentioned in last week’s blog, there’s a big change coming to divorce law in England and Wales this year. No fault divorce is due to come into effect in April 2022. But what changes will it bring? And is it worth waiting for the new system if you know you want to divorce now? No fault divorce in 2022: what does it mean for you?
What is the current divorce system in England and Wales?
Before we get into what ‘no fault’ means, let’s have a quick review of how divorce currently works in England and Wales.
At the moment, couples wishing to divorce must demonstrate one of five facts to show their marriage has irretrievably broken down. These facts are:
- Unreasonable behaviour
- Adultery (not available for civil partnership dissolution)
- Desertion for at least two years
- Separation for at least two years with the consent of both parties
- Separation for at least five years even if one party disagrees
One party brings the divorce petition (the petitioner). The other is the responder.
Critics of the current system argue that this process sets up and escalates conflict between the divorcing couple. They may simply have drifted apart, and the need for one to petition against the other incites unnecessary bad feeling. This process also sets the court up as a moral arbiter in the eyes of some, whereas the reality is that the judge usually has no desire or need to understand the ins and outs of who behaved badly in your marriage. They simply look at the financial and practical facts and make a decision accordingly.
What is no fault divorce?
No fault divorce does exactly what it says on the tin. There will no longer be a need to rely on one of the ‘five facts’ as grounds for divorce. Instead, one, or both (more on that in a second) of the divorcing couple will be able to apply for divorce by citing irretrievable breakdown. No reasons or evidence is needed. So no-one has to be blamed or shamed in the divorce process.
Couples will also be able to apply for divorce jointly, rather than via the current petitioner and responder system. In standard divorces, those in which there are no control or emotional abuse issues (as compared with high conflict divorces), I highly recommend having a collaborative approach to divorce.
Within the existing system there are still a number of ways to collaborate. One of the most common is by minimising the involvement of the courts, and working with a mediator to agree financial settlements. But, unless the couple has waited at least two years, they will still need to cite blame-based grounds for petitioning for divorce in the first place. Applying for divorce together starts the process on a collaborative footing, which is more likely to lead to an amicable (and typically lower cost) outcome.
A further change is that the divorce cannot be contested. When a divorce is contested it can accelerate both costs and bad feeling dramatically. It also drags proceedings out – often for years. Under the new system, one party applying to divorce on the grounds that the marriage has broken down is sufficient.
So, is no fault divorce a good thing?
Most people are in agreement that the new system will help to take unnecessary hurt and heat out of the divorce process. At a time when emotions are high, a fault-based divorce system can make matters even worse. Even if the couple has agreed to separate the need to blame one party, and come up with documented reasons for the marriage breakdown, can stir up ill-feeling.
Some fear that the new system will make divorce too attractive an option when a marriage is simply going through a tough patch. For this reason there will be a minimum time period of 20 weeks between the application and the conditional order (currently known as the decree nisi). Called the ‘period of reflection’, this time is intended as a brake pedal to allow couples to work through their differences.
Another criticism of no fault divorce is that if one party has behaved badly, they ‘get away’ with it in the eyes of divorce law. Under the current system, if you or your spouse has behaved unreasonably, that behaviour can be cited as grounds for divorce. Some people feel that, particularly in violent or abusive situations, the perpetrator should be accountable for their behaviour in the divorce courts.
In reality, however, a judge rarely comments on the reasons behind divorce. The judge is concerned with ensuring a fair arrangement for the future rather than raking over the rights and wrongs of the marriage.
Should you wait for no fault divorce to start divorce proceedings?
As with many things in life and divorce the answer to whether you should wait for no fault divorce depends.
The main benefit of no fault divorce is that it turns the heat down. It removes the need for blame. If you think this will ultimately make your divorce quicker and emotionally easier it’s worth the wait.
So if your spouse is likely to take offence at being ‘blamed’, or you are reluctant to be the person who has behaved unreasonably for the sake of the paperwork, no fault is a good route. It’s also worth waiting if you think your spouse will contest the divorce, as this won’t be possible under the new system.
On the other hand, if you think you can keep it amicable, there’s no reason not to go ahead now. In reality, the no fault system is more of a symbolic move – it’s not that the divorce court currently shames and punishes bad behaviour. They simply want to ensure fair arrangements are in place regarding children and finances.
Courts are likely to be busy when the changes come into effect in April. If you can find a non-offensive form of words, or agree to nominally take the blame yourself, then why wait?
If you are going to wait…
You can still act now. Many aspects of the divorce process will remain the same. You and your spouse will still need to agree a financial settlement, and arrangements for any children. And you can begin much of the preparation now.
If you and your spouse are in agreement, and you trust them to collaborate with you, there’s no reason why you can’t begin discussions about finances and children now. I highly recommend employing the services of a family mediator as you start to work out your plans. Yes, even if things are amicable between you and your soon-to-be-ex. A mediator brings professionalism and training to your discussions. It’s unlikely that you and your spouse will have been divorced before – certainly not many times! A mediator, on the other hand, will have facilitated many of these conversations.
If you don’t want to work with your soon-to-be-ex in this preparation phase, there’s still plenty you can do. As I am famous for saying, it’s critical that you know your numbers before you agree to any financial arrangements. You can start that process now.
Gather your financial information together. Explore any neglected bank accounts or pension funds. Use bank statements to get a sense of your living costs over the past year, as this will help you understand what you need going forward.
Getting your strategy together
If you’re considering divorce, it’s never too early to get a strategy in place. I can work with you to get your mindset in place, so you know what values and priorities you want to guide decisions about your divorce (and life!). I can help you make sense of the jumble of emotions and ‘what ifs’ and ‘we’re supposed to do this but how does that work for me with my specific situation?’ questions that you’ll have swimming around your head.
Equally, it’s never too late to get a strategy together either! If you’re deep into your divorce and things are going off the rails, you’ll be amazed at how quickly you can get back on track. Together we can filter out the noise and distraction. I can help you make sense of the legalities and the finances. And you’ll be clearer and more confident about getting your divorce sorted in 2022.
If you want to get your divorce sorted with confidence, I have space in my diary for you. Just book in a chat here.
Emma Heptonstall, the Divorce Alchemist is the author of the Amazon best-selling book How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready. A former lawyer, Emma is a family mediator and founder of Get Divorce Ready the online self-study and group programmes. Emma has been featured on BBC Radio, The Telegraph, the iPaper and in Marie Claire Magazine. Emma is also the host of The Six Minute Divorce Podcast. To find out more visit www.emmaheptonstall.com