A review of no-fault divorce four years on

No longer a blame game

The most significant impact of the introduction of the Divorce, Dissolution and Separation Act 2020 is the removal of the five facts that a petitioner previously had to rely on to justify their divorce. No longer are spouses required to assign blame to the other and justify their decision of divorce by pointing to actions such as adultery or unreasonable behaviour. Instead, the system has now been replaced with one single requirement that the petitioner (now applicant) confirms that there has been an ‘irretrievable breakdown of the marriage’ and this statement is accepted at face value; no further explanation or evidence is needed or asked for by the court.

As a result, the divorce courts are no longer consumed with considering the fine details of a couple’s marital breakdown, and on some occasions, rejecting applications for not meeting the criteria for divorce. This also means that there are very limited grounds that a divorce can be contested by a spouse. A spouse is not able to factually challenge that their relationship has irretrievably broken down, meaning that once a person has decided they want a divorce their spouse cannot stop them from taking this step. This is a particularly powerful change as it means that controlling or abusive spouses cannot purposely frustrate the divorce process as a means of continuing such control or abuse. Divorce can now only be contested on procedural grounds, such as challenging the jurisdiction of the application, the validity of the initial marriage or by claim that divorce has already occurred.

Does this mean it is ‘easy street’ for divorces from now on?

With the removal of acrimony in divorce and the introduction of a streamlined application system, fit for the modern age, it may appear that divorce has now become a simple enough process that individuals can dispose of the need for legal representation or advice. Four years on, undoubtably it can be said the streamlining of the process has improved the experience of receiving a divorce, for both individuals and practitioners alike. There are, however, some key impacts of divorce which should not be overlooked:

• Do not mistake a simple application process to mean divorce and its implications are simple. As with marriage itself, there are a number of significant legal changes which are triggered by receiving a final divorce order. You could risk losing your entitlements to key financial assets of your spouse if you push ahead to the final order without addressing financial arrangements first. This is most significantly the case in relation to inheritance, but this is by no means the only impact. You should be clear, with comprehensive legal advice to guide you, on the full impact of the action you are taking before deciding to apply for and proceed with a divorce.
• A final divorce order ends the legal status of your married relationship. It does not end either spouse’s claim against the income, assets or pensions of the other. Crucially, divorcing spouses need to obtain a separate financial order from the court, to end those financial claims. These are not produced automatically and must be either negotiated or ordered by the Judge. These financial claims can rear their head years, and sometimes decades after a divorce is concluded. The financial order will address the practical financial effects of divorce, by ordering how assets, pensions and income are split.
• Unfortunately, the removal of acrimony in divorce does not mean the removal of acrimony in separation. While the new law has paved a trail for couples to engage in more harmonious separations, it by no means guarantees this. Many couples agree that they both want to separate, but it is most often the finances where they do not see eye to eye. If parties cannot agree a financial settlement they may still need to apply to court for a financial order. Unresolved acrimony in separation can often also spill over into disagreements about children for the family and how to best care for them moving forward. If separating parents cannot agree between themselves, the court may become involved to make decisions for the family.