‘No-fault’ divorce comes into force

Professor Therese Callus, Professor of Law at the University of Reading explains the upcoming introduction into law of the 'no fault' divorce:

"Let’s be clear: the majority of marriages will last, although just over one third will end in divorce. For those who have navigated divorce under the Matrimonial Causes Act 1973 – the law which from 6^th April will no longer apply to divorce (or dissolution of civil partnership) – the coming into force of the Divorce Dissolution and Separation Act 2020 will be heralded as a positive change.

"Put bluntly, until the end of March 2022, couples wishing to divorce had to identify a fact which had caused the irretrievable breakdown of the marriage – and most of the facts were fault based – adultery, behaviour, or desertion, with the only non-fault facts requiring either two years separation with consent of both spouses, or five years separation if no agreement.

"Inevitably, it was a blame-game, even though in reality, most couples who wanted a divorce would get one through a non-adversarial special process, even though there may be much acrimony between them due to blame laying. As from 6^th April, the process becomes far simpler – either one spouse or both can apply for divorce on the basis that the marriage has broken down irretrievably, but there is no need to show any reason for the breakdown and very little opportunity to resist a divorce once applied for.

"Surely this will go some way to alleviating conflict and acrimony which can never be in the best interests of the spouses or any children of the marriage. Yet, what the new law doesn’t do, is make any difference to the need to agree on how arrangements for the children or for the sharing of financial assets and debts need to be sorted out.

"Although a very welcome reform in terms of the process of divorce, the new no-fault system does not replace the need for parties to make these sensitive and complex arrangements – the subject of which will remain the main cause of disagreement and conflict. We need to build on the positive steps of the new Act by considering how we might make the financial consequences of divorce equally agreeable, or at least comprehensible, to the general public. One way of doing this may be to introduce some element of marriage contracts common in civil law jurisdictions to ensure that parties are aware before they marry, of how marriage can affect their financial position, thereby ensuring that should divorce be required, the financial outcome will be as predictable as the divorce process now is."

Professor Thérèse Callus is co-author on an influential study funded by the Nuffield Foundation on matrimonial property regimes (Community of Property – a regime for England & Wales) and member of the Advisory Group to the Law Commission’s project on Matrimonial Property, Needs and Agreements, Law Com 343 (https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/03/lc343_matrimonial_property.pdf ).

Professor Thérèse Callus and Mr Tony Roe, Solicitor at Dexter Montague and Visiting fellow in Family Law, University of Reading will be holding a free to attend public lecture on 28^th April at the UoR on the implications of the new law on divorce.