No-fault divorce: advantages & disadvantages of the new law

Although some marriages breakdown due to misdoings, it is also common for a marriage to end simply because the parties both want different things in life.

Under the new law, it is not necessary to prove that your spouse caused the marriage to breakdown. This reform has been praised for reducing potential conflict but has also come under some scrutiny.

The main advantage of a no-fault divorce is that it eliminates the option to place blame on either party within the legal process of divorce which can therefore reduce unnecessary conflict. The old law has been greatly criticised for this precise reason. In the great majority of situations, no such conflict exists - the parties simply drift apart or decide that they want different things in life. It is hoped that rather than playing the blame game in divorce proceedings, parties will direct their energy to focus on the other practical issues such as child arrangements or financial orders. Children are less likely to hear the intricate details of their parents' divorce and who did what to whom in a no-fault divorce, which is hoped to make an already painful process a little easier for them.

Another advantage is that it reduces the compulsory time to wait for a divorce. Under the old law, where adultery or unreasonable behaviour does not apply, parties have to wait either 2 years (with consent) or 5 years (without consent) from the date of separation to file for divorce. In contrast, under the new law, there is no requirement to wait. This is particularly important in domestic abuse cases as the victim will no longer be trapped in a dangerous marriage; having previously only faced the option of citing behaviour allegations that they fear could result in greater abuse.

The introduction of the new law means that divorce becomes more accessible. On one hand, this is an advantage as it means that people, who previously may have feared the divorce process due to delays or lack of understanding, can now terminate their marriage and move on much more easily. However, on the flip side, making divorce more accessible may see a rise in divorce numbers as couples are no longer inclined to try to make it work. Put bluntly, there is a fear that couples may give up on marriage too easily. The new law builds in a compulsory 20-week period of reflection after an application is made to try to temper these fears.

The most talked about, controversial issue with a no-fault divorce is the perceived lack of accountability which arises from the no-fault approach. In some cases, marital breakdown is something where one party may be keen to attribute ‘blame’. For example, if they consider the breakdown to be due to adultery or unreasonable behaviour. Under the old law, the petitioner could file for divorce on those grounds, therefore demonstrating their belief that their spouse caused the marriage to break down. The new law does not accommodate this. It is currently unclear what impact this will have, but some believe it may cause emotional issues for the divorcing spouse, who feels that their side of the story has not been heard, and the process has wronged them. There may be a considerable rise in such individuals seeking out therapeutic support to deal with such emotions.

This is of course not an exhaustive list of the advantages and disadvantages of a no-fault divorce therefore please do not hesitate to contact our specialist family law team for further information who would be delighted to assist you.