Getting a divorce can be an extremely difficult and emotionally challenging time for the former couple. Yet even where both ex-partners are in agreement that divorce is the only option, the law at present in England and Wales does not allow a ‘no-fault divorce’.
Under current rules, to legally divorce, blame must be attributed to one of the parties, which can cause unnecessary conflict and exacerbate even the most amicable of separations.
This situation is, however, set to change in Autumn 2021 when the Divorce, Dissolution and Separation Bill is due to come into force.
What is no fault divorce?
The concept of no fault divorce is based on the idea that some couples may have naturally grown apart or have chosen to separate amicably.
In these circumstances, individuals should be allowed to formally bring their marriage to an end without holding each other accountable due arbitrary requirements of the legal divorce process.
The introduction of no-fault divorces has been long campaigned for by Resolution and legal advisers, who believe the change will allow divorcing couples to focus on the practical arrangements and the legal implications of separation and rather than issues of blame. Attributing fault in divorce is generally seen as unhelpful, since blame rarely has any implications on the financial settlement.
The new no-fault rules will not, however, equate to a ‘quickie’ divorce. The process will remain thorough and robust, and it will still take around 6 months to obtain a final divorce order.
Grounds for divorce
As the law currently stands in England and Wales, divorcing couples cannot simply state that the relationship has failed.
Under section 1(1) of the Matrimonial Causes Act 1973, it is necessary to prove that the marriage has broken down to the point where it cannot be saved. This is known as irretrievable breakdown.
There are five different ways to satisfy the court of the statutory ‘irretrievable breakdown’ requirement, three of which are fault-based. These include adultery, unacceptable behaviour and desertion.
The remaining two facts relate to defined and prolonged periods of separation, namely:
- The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted.
- The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Grounds for no fault divorce after 2 years living apart
If neither party is at fault, or you wish to avoid any acrimony by seeking to lay blame, the court will only grant a no fault divorce if you have lived separately for a specified period of time.
To divorce on the grounds of irretrievable breakdown of marriage without requiring fault on the part of the respondent (ie the person responding to the proceedings), the petitioner (the individual filing the petition for divorce) can do so after two years of separation. The respondent must, however, consent.
What is a ‘continuous period’?
To satisfy the separation requirement you must have lived apart for a ‘continuous period’ of at least two years immediately preceding the presentation of the petition. This normally means without interruption.
In practice the law will give couples the chance to reconcile on more than one occasion so long as the total period does not amount to more than six months. Further, any period of reconciliation cannot be included in the calculation.
If you resume your relationship for more than six months, this will break the period of two years separation. You would need to wait a further two years after your final separation before using this fact.
You can be separated whilst living under the same roof so long as you are not living together as a couple. Living in the same house is not the same as living in the same household, for example you no longer eat, sleep and undertake household chores together. In other words, your communal life has come to an end.
Grounds for no fault divorce after 5 years living apart
After five years, you do not need the agreement of your estranged spouse to apply for a divorce. Here the same rules as above apply in relation to what counts as ‘living apart’ and the ‘continuous period’, albeit over five rather than two years.
When citing a five year period of separation, your spouse can only object to the petition on the basis that a divorce will cause grave financial or other hardship, and in all the circumstances it would be wrong to dissolve the marriage. This is extremely difficult to prove, as the hardship must result from the dissolution of the marriage itself and not just from the breakdown.
Applying for no fault divorce
As the law stands, seeking a divorce is not something that can be done jointly, even if you both agree that you want to formally end the marriage. That said, either party to the marriage can petition for a divorce on the grounds of separation after either two or five years.
To start proceedings you will need to complete a written application for divorce to be sent to the Family Court that serves as your regional divorce centre. You must include your original marriage certificate or a certified copy (a photocopy will not suffice), together with the correct court fee.
In some circumstances you may be able to apply for help with the court fees, for example, if you are in receipt of benefits. You can also ask the court to consider if the respondent should pay your costs. Typically, as a way of persuading the respondent to agree to the divorce, a petitioner will only ask for their costs to be paid if the respondent objects to the application.
You will need to send the completed form citing your grounds for no fault divorce (ie; two or five years separation) back to the court. You must include two copies, one to be sent back to you with a case reference number and one to be forwarded by the court to the respondent.
The respondent will also be sent an acknowledgement of service form to complete. The respondent is required to return this form confirming receipt of the application and whether they object to the application within seven days.
In the event that no objection is raised you can then complete an application for a decree nisi, together with a statement in support of divorce. The decree nisi is confirmation from the court that you are entitled to a divorce. It will not, in itself, end your marriage. On receipt of the decree nisi you will be informed of when you can apply for the decree absolute.
You will be required to wait six weeks and one day from the date of your decree nisi before you can apply for the decree absolute.
If you are the respondent and the petitioner does not make the application for their decree nisi to be made absolute then you can do so, although you will be required to wait another three months after the time when the petitioner could have applied.
On the grant of the decree absolute you are officially divorced.
In Scotland the separation period for no fault divorce has been reduced from two years to one (with consent) and five years to two (without consent). It has also introduced a simplified do-it-yourself procedure for no fault divorce. However, as the law currently stands in England and Wales, to bring your marriage to an end by way of no fault divorce it is – at least for now – a waiting game.
If you anticipate that your marriage may end in divorce it is always best to seek legal advice. Whilst the part of the legal process that ends the marriage is relatively straightforward, any financial disputes or disputes over children can result in complex and protracted legal proceedings.
If you need to apply for a financial order or make practical arrangements relating to the custody or care of children you should always seek the guidance of a legal advisor specialising in family matters.
Moreover, if you are unable or unwilling to wait the minimum two year period to apply for a no fault divorce, an expert legal advisor can help you understand the legalities of citing adultery, behaviour or desertion as an alternative basis for formally bringing your marriage to an end.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.