No fault divorce – no longer a blame game

The previous divorce process

This was much anticipated by Family lawyers and clients alike following the case of Owens v Owens in the Supreme Court, and it is hoped that it will be the start of an era of more amicable divorces.

Previously, when you submitted a Divorce Petition, the petitioner had to rely upon one of five facts, setting out the details of the fact that they choose. These facts were:

• 1) Adultery;
• 2) Unreasonable behaviour;
• 3) Desertion;
• 4) Two years’ separation with consent;
• 5) Five years’ separation.

In the past, a Divorce Petition may have been defended by the respondent, however this was very much the exception rather than the norm.

The new 'no fault' divorce process

From 6 April 2022, the Divorce, Dissolution and Separation Act 2020 came into force and has replaced the requirement for reliance on a particular fact with a new requirement for the petitioner to provide a statement of irretrievable breakdown. The court will not be required to look into the irretrievable breakdown itself beyond considering whether the procedural statement requirement has been complied with.

A respondent to a Divorce Petition will also no longer be able to defend the application or dispute a ‘fact’, although Divorce proceedings will still be able to be challenged for limited reasons such as:

• jurisdiction (i.e. whether the court is permitted to issue divorce proceedings based on the parties’ habitual residence or domicile);
• the existence of a valid marriage or civil partnership; and
• fraud and procedural compliance.

Beyond this, a Divorce Petition will no longer be able to be challenged, unlike the current situation.

In addition, a new option of applying for divorce jointly will become possible where the decision to divorce or dissolve the civil partnership is mutual and couples wish to cooperate from the outset.

Want to know more?

If you are separating and considering divorce or dissolution and require legal advice, please do get in touch with one of our specialist Family lawyers to see what we can do for you.