What is a no fault divorce?

It’s a term that’s often used, but what exactly is a “no fault divorce”?

Put simply, a no fault divorce is a divorce that can be obtained without having to prove that the other party was at fault for the breakdown of the marriage.

To explain this in a little more detail we need a brief history lesson.

The blame game

Divorce under civil law in England and Wales first became possible in the nineteenth century. And in order to get a divorce it is necessary for the party taking the divorce proceedings to prove to the court that the marriage has irretrievably broken down.

Until last year this normally entailed proving that the breakdown was the fault of the other party, for example because they had committed adultery, or because they had behaved unreasonably.

Proponents for no fault divorce often referred to this system as “the blame game”. For many years they argued that having to blame the other party for the breakdown of the marriage was unnecessary and likely to increase animosity between the parties.

And they finally got their way last year when a new system of no fault divorce was introduced in England and Wales.

Under the new system the ground for divorce is the same as under the old system: that the marriage has broken down irretrievably. However, the big difference is that it is no longer necessary to prove irretrievable breakdown – a simple statement by one or both of the parties that the marriage has irretrievably broken down is enough, as the court must accept this as proof that the marriage has broken down irretrievably.

Under no fault divorce there is therefore no need to blame anyone for the breakdown of the marriage.

Benefits of no fault divorce

The primary benefit of this new no fault system is that not having to blame the other party for the breakdown of the marriage removes one common cause of animosity between the parties. Obviously, no one likes to be blamed for causing their marriage to break down, and anyway in many cases the breakdown of the marriage is unlikely to be entirely the fault of one party.

Removing blame should hopefully reduce animosity, thereby making it more likely that the parties will be able to agree important issues such as arrangements for children and finances after divorce.

No fault divorce also means that it will no longer be possible to defend the divorce, as a statement that the marriage has irretrievably broken down cannot be challenged. Defended divorces could be time consuming and expensive, and were ultimately pointless, as a court’s decision that the marriage had not legally broken down was obviously unlikely to result in a reconciliation, and would therefore just prolong an unhappy marriage.

Another big benefit brought by the new system was that for the first time it is possible for both parties to make a joint application for the divorce. Obviously, joint applications are another way to reduce animosity between the parties.

How do you obtain a no fault divorce?

As indicated above, a no fault divorce is initiated by one or both of the parties making the divorce application, supported by a statement that the marriage has irretrievably broken down.

The court must accept this statement as proof that the marriage has irretrievably broken down and, if the application was made by one party, the other party cannot defend the divorce.

After the divorce application is made a period of 20 weeks must elapse before the divorce can proceed. This is intended to give the parties an opportunity to reflect, to ensure that they do indeed wish to bring the marriage to an end.

If they do then after the 20 week period they can apply for the divorce to proceed. The court will then fix a date for the conditional divorce order (the equivalent of the old decree nisi) to be made.

Six weeks after the conditional divorce order is made an application can be made for the divorce order to be made final. The final divorce order (the equivalent of the old decree absolute) will bring the marriage to an end.

Please note that if the financial settlement has not been finalised when the six week period has elapsed it may be appropriate to delay applying for the final order until the settlement has been finalised.

How can we help?

For further information, please see the Divorce, Separation and Finances page.

Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.

Please contact us if you require any further information