Ending the ‘blame game’ – The impact of no fault divorce
The introduction of a no-fault divorce in England and Wales means that couples will no longer have to prove fault or wrong-doing to legally end a marriage. Could this be the key to a friendly, stress-free separation?
As the law currently stands, the person filing for divorce is required to rely on one of five ‘facts’ to prove that the marriage has irretrievably broken down:
- Adultery
- Unreasonable behaviour
- Two years’ separation with consent
- Five years’ separation
- Desertion
These rules force one party to blame the other and actively look for wrongdoing if they do not want to wait two years before obtaining a divorce. This is distressing for the majority of couples who have simply drifted apart and are looking for ways to separate as constructively as possible.
No-fault divorce has the potential to change the divorce process for the better, including far less conflict between parties involved, particularly with regards to questions such as who gets the house in a divorce and making arrangements for children.
What is no-fault divorce?
No-fault divorce legislation will introduce a number of significant improvements to the current rules, including:
- A statement of irretrievable breakdown will be enough to satisfy the court
- The need for ‘facts’ will be removed, so no-one has to make accusations about the other’s conduct during the marriage
- The couple can apply for divorce together as equal partners
- The opportunity to contest the divorce will be removed, so there is no possibility of one partner being trapped in a loveless and unhappy marriage
The legislation also introduces a minimum six-month period from the filing of the petition to final divorce. This gives the couple time to reflect on whether divorce is the right option and make arrangements for financial and property matters and dependent children.
How will these changes help couples separate amicably?
The first, and perhaps most obvious, impact of the new rules is they lay the groundwork for couples to take a non-confrontational approach to their divorce. Playing the blame game makes the process antagonistic from the start. If you remove the need for fault, then it is much more likely that couples will work together to achieve a friendly separation, saving themselves a lengthy, stressful battle in the courts.
Your lawyer plays an important role in this process. Many solicitors are members of Resolution, the largest membership organisation of family law professionals in England and Wales. Resolution members are committed to resolving disputes in a sensitive and constructive way, which results in better outcomes for families.
How do the new rules affect property and finances?
When you and your partner decide to end your marriage, you need to agree how you’re going to divide your home, assets and investments. The ideal way to do this is by talking it out. You can generally avoid going to court if you agree how the money and property will be split.
The new rules will not change this process. However, they will change the tone. There are two sides with an adversarial divorce process, and the dynamic is to battle it out until one partner wins and one effectively loses. This sets people up for making poor decisions. If you’re the person who’s been cheated on, for example, you may feel that you should get a larger share of the assets as you are the ‘victim.’ This is not a reasonable stance to take when it comes to sorting out your finances.
No-fault divorce gives the couple the opportunity to completely separate the legal side of the divorce from the important conversations that need to happen about money. Couples who are able to have calm and measured discussions tend to achieve a faster, fairer settlement.
How will the children benefit?
Divorce can be hard on children. They may have to lose the home they are used to, change schools and lose touch with friends. Coping with these changes is even harder if parents are judging, criticising or bad mouthing each other. No one ever intends to air their grievances in front of children, but these things can happen when you’re caught up in a legal battle. This can create a blueprint for poor family relationships in the future.
No-fault divorce allows parents to be much more cooperative around each other. By reducing the negative energy, parents can focus on making good decisions for the family. This pays dividends when deciding child arrangements and how much time the children will spend with each parent – speeding up the process of moving on with life and establishing an amicable co-parenting relationship.
Lisa Pepper is a partner in the family department at Osbornes Law specialising in Divorce, finance and children matters. She is also an accredited mediator. Lisa is ranked as a leading lawyer in Chambers UK, Chambers HNW, The Legal 500, Spears HNW directory and Tatler Advisory.