To blame or not to blame – frequently asked questions on the new no fault divorce
I appeared on ExpressFM radio this week to talk about the new no fault divorce which is coming in tomorrow – 6th April 2022. It’s the biggest shake up in divorce law in nearly 50 years so it is very much anticipated. It has been introduced to do what it says on the tin – to take the blame (fault) out of the divorce procedure so that we no longer have to rely on or prove there was adultery, unreasonable behaviour, a separation of over 2 or 5 years, or desertion. One of the key reasons for taking away blame is to try and allow divorces to go ahead as amicably (and therefore as smoothly) as possible, taking away tension and conflict so that the parties can concentrate on other key issues such as the children or finances. To remove additional tension where there are children involved is important. Why inflame what could already be a tense situation?
I had a number of listeners on the radio raise questions about the new divorce system and these have formed part of some frequently asked questions that I have received in the past few weeks and months leading up to this change:
I have started my divorce under the old system. Should I stop and start under the new system, or ask for it to be transferred over?
If you have started under the old system, then you should continue if it is proceeding as it should be. There is no automatic switch over – divorces issued before 6th April will be dealt with under the old system and applications after 6th April will be dealt with under the new system. You cannot have two live applications at the same time. If there were huge problems with the divorce under the old system, you could apply to withdraw it but there would be a fee for that after already paying the initiating fee, then you would have another initiating fee to start under the new system.
Will the new system be quicker?
Not necessarily. There is now a minimum of 6 months for a new divorce application to go through from start to finish whereas we had no minimum under the old system and with a good wind and no major delays with the court, a divorce could have been obtained in 4-6months. Under the new system, the minimum period of 6 months is there to allow a period of reflection.
My spouse committed adultery and / or behaved badly towards me – can I still include this?
No. There is no space or opportunity to do so on the application. It would defeat the object of trying to take blame away. We appreciate that in a lot of cases there is adultery or behaviour that is very hurtful but often citing it doesn’t take that pain away anyway and divorce petitions are private documents and adultery has no impact on children or financial matters so it’s taken that there is no benefit in raising it.
If my spouse was the one that caused the breakdown, can I get them to pay for the costs?
Not by way of the application, no. The applicant who is applying for the divorce will have to pay the court fee. Both parties can jointly apply for the divorce now (which they couldn’t do previously) but applicant number 1 will be responsible for the fee. I would therefore suggest that the parties try and agree upfront how that fee will be paid / potentially shared.
My spouse doesn’t want a divorce - can they stop it?
No. The ability to ‘defend’ a divorce has been taken away. Another reason for introducing the new system was to allow more autonomy – if a person wants a divorce, then they should be able to have one regardless of whether the other spouse agrees.
For more information on the new no fault divorce, feel free to contact me or my team at firstname.lastname@example.org
Director and head of the private law family team at Biscoes