No-Fault Divorce

During the pandemic, there has been a spike in divorce petitions throughout the country. Some speculate that the national restrictions forced couples to face underlying marital issues which led to the ending of the relationship. In the United Kingdom, the only ground to petition a divorce is because the marriage has broken down irretrievably. This can be proven on the basis of one of the following five facts.

Firstly, it may be possible for a divorce to be granted because the respondent has committed adultery and the petitioner finds it intolerable to live with them. This ground is practically difficult to satisfy unless the respondent admits the adultery.

It is far more common for petitioners to base their petition on the fact that the respondent has behaved in such a way that it cannot be reasonably be expected for the petitioner to live with the respondent. The ‘unreasonable behaviour’ element varies between each marriage and is subjective to each petitioner.

There are two facts based on separation. The most commonly used is where the petitioner and respondent have lived apart for two years prior to the petition being filed and the respondent agrees to the divorce. If the respondent does not provide their consent, the petitioner must not have cohabited with the respondent for a minimum of five years prior to filing the divorce petition.

Lastly, if the respondent has deserted the petitioner for two years prior to filing the petition. This can be difficult to prove as it is necessary to show the respondent had the intent to end the relationship.

Currently, the United Kingdom does not give parties the opportunity to engage in a no-fault divorce. However, the Divorce, Dissolution and Separation Bill which gained Royal assent in June 2020 is set to be implemented in the United Kingdom later in 2021. For many years, people have campaigned for the United Kingdom to have a no-fault divorce system in order to relieve hostility surrounding divorce. By eliminating the element of culpability, it is possible that the divorce process will be more amicable for all parties involved as there will not be a need for one party to take sole responsibility of causing the end of the marriage.

Divorce itself can, more often than not, be an understandably emotional process. The implementation of the no-fault divorce system has the potential to encourage clients to focus on the facts of the matter in turn resulting in more co-operation. This may be especially advantageous where children are involved as it may facilitate a more harmonious co-parenting relationship between the parties. It is common practice that the best interests of the children are put at the forefront of any divorce proceedings.

However, no-fault divorces are unlikely to impact how the financial settlement is calculated. It is a common misunderstanding that where a party has behaved unreasonable or committed adultery they will be awarded less when the finances are considered by the court.

Furthermore, no-fault divorces are likely to follow the same process and costs as the existing facts of divorce, therefore it is unlikely that the formalities will take less time as some may have anticipated.

If you are considering divorce proceedings, or would like further information on the process of divorce, please feel to contact John Szepietowski or Kay Stewart at Audley Chaucer on 01372 303444 or email us at or visit our Linkedin Page.

Larissa Bourgi

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