What does no-fault divorce mean in practice?
The Divorce, Dissolution and Separation Bill passed its third and final reading in the House of Commons yesterday and heads now towards Royal Assent.
According to Justice Minister Robert Buckland, we should see this new no-fault divorce law implemented in the autumn of 2021.
The campaign for no-fault divorce
The campaign for no-fault divorce has been running for many years. Championed by Resolution, an organisation primarily for family lawyers who see the damage that blame can cause to separating couples.
As family lawyers, we also recognise that taking away that blame will not encourage more people to divorce as some people fear. Instead, it will help those who reach the decision that their marriage or civil partnership is beyond hope of reconciliation to deal with the legal and practical consequences without getting caught up in the “blame game”.
There remains a common misconception that “fault” will materially impact a financial award. The simple truth is that “bad” behaviour is rarely taken into account when calculating what a financial settlement should be.
However, it is difficult for clients to separate the fact that they are relying on behaviour or adultery as the reasons for divorce from the discussions about finances. The belief that if someone has been wronged there should be a consequence for the other party is a natural human reaction. But that is not how the Courts regard it in the vast majority of cases and have not done so for decades. Needing or wanting to blame creates an unnecessary distraction for many people engaging in the divorce process where the focus should be on reaching a resolution as quickly and painlessly as possible.
Removing blame will also help parents to avoid confusing the reasons why they believe their relationship broke down when focusing on future arrangements for their children. This will help parents look forwards and not backwards. It can be heartbreaking to see a parent use their children against the other parent. For example by denying contact or making frequent negative comments about their ex. Taking blame out of the legal separation process with this reform will help people to shift their focus away from “why it happened” towards a mindset of “what do we need to do now to move forward?”
Resolution and many other individuals and organisations that work with or have observed the impact of relationship breakdowns have long campaigned for a better way for people to separate. A way which focuses on less confrontational, non-litigious ways of reaching financial settlements and discussing arrangements for their children. No-fault divorce is a significant step along that road.
Q&As on no-fault divorce
Will divorce reform lead to an increase in divorces?
If we look at other countries where reform has taken place there has been a temporary increase in numbers of divorces. However, in the main, this has been driven by a drop in numbers in the period leading up to the change in the law as some are prepared to wait to avoid blame. The “spike” then soon returns to normal levels and divorce numbers generally are in decline as fewer people are getting married.
Does this mean we can have a “quickie divorce”?
No, in fact, the process involves a period of six months before a final divorce order can be obtained, it is not likely to be any quicker than the current process (putting aside the delays that exist within the overburdened court system).
Will no-fault divorce encourage more marriages to break down?
No why should it? Couples do not engage in divorce because of the process. They are not thinking about the legal steps when they reach the decision to divorce. All this reform does is make it less contentious and painful when they do decide that their marriage is beyond repair.
Will it be cheaper to get divorced when there is no blame?
It makes logical sense that if your separation is less contentious then the legal costs will be lower, but remember that as well as dissolving the legal marriage or civil partnership, there are often financial arrangements to sort out as well. It is hoped that with a culture of no-blame that this will encourage more constructive discussions leading to better and therefore less expensive outcomes.
Julian Hawkhead is Senior Partner at Stowe Family Law.
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