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Divorce Dissolution and Separation Act 2020 – The advent of no-fault divorce

Posted on 31 August 2022

On 6 April, a new system of "no fault" divorce was implemented, helping reduce acrimony on marital breakdown. The previous law in relation to divorce dated back to 1973 and required that a spouse seeking a divorce either had to attribute blame, or wait a minimum of two years. If the other spouse did not consent to the divorce, the minimum wait without relying on fault was 5 years.

The new law requires an applicant to certify that the marriage has irretrievably broken down. No further details or evidence is required. Once the applicant has certified that the marriage has broken down, there is a 20-week "cooling off period" before a conditional order of divorce can be applied for, and a further 6-week period from the making of a conditional order to the making of a final order of divorce.

Importantly, a respondent's ability to dispute a divorce will be limited to situations where the court does not have jurisdiction – e.g. if the parties have no connection to this country or were not in fact married. It will also be possible for parties to apply jointly for a divorce.

Sandra Davis says: Despite the terms of the previous legislation, which required fault or a minimum of two years separation, for many years the treatment of divorce in this country has moved away from apportioning blame for the breakdown of the marriage, and from forensically investigating who did what to whom and then exacting a financial penalty for bad behaviour. The new process for obtaining a divorce is to be welcomed as being more in keeping with the modern reality; no longer will spouses be forced to look back but rather empowered to look forward. The focus is on civilised outcomes and by creating a new pathway it is to be hoped that spouses will find it easier to mediate than recriminate.

However, certain types of behaviour remain relevant in proceedings regarding children. Even where the behaviour in question does not cross the threshold of abuse, there is a concern that spouses, instead of arguing about why the marriage broke down, will simply transfer their conflict to disputes in relation to their children. While programmes such as the Government's mediation voucher scheme and a pilot scheme being run with the aim of diverting cases regarding children away from the courts are to be welcomed, these initiatives will only be successful if sufficient resources are invested by the Government into supporting families in all aspects of relationship breakdown.

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