What is no-fault divorce and why does it matter?

It will stop spouses from having to play the 'blame game' when splitting up

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The Divorce, Dissolution and Separation Act 2020 came into effect on Wednesday 6 April.

First promised by the government in April 2018, divorcing couples have now been waiting four years for the act, which is set to revolutionise marital splits with the introduction of “no-fault” divorce.

No-fault divorce is a new legal concept that will stop couples fighting over blame during a break-up, something which the Justice Secretary, MP Robert Buckland, says will “spare” families.

“The institution of marriage will always be vitally important, but we must never allow a situation where our laws exacerbate conflict and harm a child’s upbringing. By sparing individuals the need to play the blame game, we are stripping out the needless antagonism this creates so families can better move on with their lives,” he says.

What is the current divorce system?

The current divorce system in England and Wales requires one spouse to initiate the process of filing for divorce and, in the process, make an accusation about the other’s conduct.

They can choose from one of three reasons – adultery, unreasonable behaviour, or desertion – but fundamentally the system is fault-based and requires evidence of guilt from one party.

If the couple isn’t able to do so, they face two years of living apart in a ‘separation’ period before the marriage can be legally dissolved, even if the decision is mutual.

And if one partner contests the divorce then this period has to be a minimum of five years before they’ll be considered eligible for divorce.

And separation-based arrangements are effectively unavailable to those who cannot afford to run two households before resolving their financial arrangements post-divorce.

How will no-fault divorce change that?

The new law means that instead of having to attribute blame for the breakdown of the relationship, a couple can mutually cite ‘irretrievable breakdown’ as the sole grounds for wanting to obtain a divorce.

This can be done in a joint statement or by an individual. Either spouse will be able to provide a statement saying it has broken down without having to provide evidence about bad behaviour.

By doing so the new law will effectively “remove the ‘blame game’” that plagues the old system, says Buckland.

Why does no-fault divorce matter?

Aidan Jones, chief executive at relationships charity, Relate tells The Independent that one of the biggest positives of the new law is that it won’t cause further bad feelings between couples, which family and children have to deal with.

“Our current divorce laws encourage increased animosity between parting couples because they are led to decide who is ‘at fault’ and why. This can be difficult to navigate – especially when there’s already a lot of bad feeling and conflict between partners,” he says.

“Even when things have been relatively amicable up until that point, the process of having to apportion blame can turn things sour pretty quickly.”

Research from Relate shows that conflict between parents is the most damaging thing for children during divorce proceedings.

Charlotte Newman, lawyer at Stowe Family law, says that the law change will finally reflect modern times.

She says: “The adversarial system of divorce would seem to have been designed to dissuade couples from divorcing by forcing one spouse to blame the other, when there could have been no fault from either party. However, as society has changed and there is no longer a stigma attached to divorce, it is time for the law to catch up.”

She adds that it will also have the primary benefit of not adversely affecting children any more than is necessary.

“Promoting a system which encourages a conciliatory approach will also benefit children, who, if exposed to animosity between separating parents, can suffer emotional harm,” she says.