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No-fault divorce is here: legal experts share their views

Today is the day that ‘no-fault divorce’ officially comes into force, marking an important moment for married couples wishing to separate amicably. Until now, couples have had to specify the grounds for their divorce – illustrating an irretrievable breakdown of the marriage.

Here, 8 legal experts share their views:

Charles Hale QC, barrister at 4PB, comments: “The family justice system, like the criminal justice system, is creaking at the seams. This is despite huge efforts by those working in it including those in charge of Courts – the HMCTS if the MOJ do not look at drastic action – and that means more money. The backlog of cases caused by Covid, with the increased cases now, will combine to produce the perfect storm.  Not only are buildings crumbling but cases are taking longer and longer to get to a judge. Whether its money or children cases, the reality is that it will always be the vulnerable and children that suffer the most. The vast majority of hard working judges would agree – they can’t cope already, and they have little to no bandwidth for more.”

Alex Davies, Partner and Head of Family Law at Cripps Pemberton Greenish, argues that no fault divorce is a great solution to the wrong problem – and that what is needed more is reform of co-habitation laws. He says:

“The advent of No Fault divorce is a very welcome reform, but what is worrying is the crashing silence on Cohabitation law reform. The real issue that needs to be addressed is the law around Cohabitation. With marriage rates declining, it is clear that more and more couples are choosing not to marry. Many people find themselves financially extremely vulnerable when their cohabiting relationship ends because they are not entitled to make financial claims as married people can on divorce. This year marks the 15th anniversary of the Law Commission’s report, ‘Cohabitation: The Financial Consequences of Relationship Breakdown’, which recommended wholesale reform. So far the government has chosen not to act.  It is high time parliament addresses this injustice that affects women disproportionately.”

Simon Donald, Partner, in the Family team at Cripps Pemberton Greenish, adds: “The introduction of “no fault” divorces finally allows practitioners, divorcing spouses and the courts to move away from what has become an archaic requirement for the breakdown of the marriage to be proven by the ‘fact’ of a spouse’s adultery or alleged unreasonable behaviour, or requiring a couple to have lived apart for either two years or five years.  The term “unreasonable behaviour” alone inherently carries connotations of blame, yet this was the only “fact” that could be relied on if no other applied.  Divorcing couples were forced to use this language even when they themselves recognised that they had simply grown apart or their lives were moving in different directions. In reality, introducing “no fault” divorces fixes a problem that family lawyers and the courts had already worked hard to resolve in practice.  This remains an important change in the law, and a significant change in the language that will now be used, which will be invaluable in changing the public perception of one party having to be to blame for the breakdown of the relationship. Importantly, it continues to promote the profession’s desire to avoid unnecessary conflict on the breakdown of a relationship.”

Graham Coy, Head of Family at Wilsons Solicitors, shares his thoughts on whether the new, no-fault divorce law will impact lawyers and their workload:

“The law change won’t reduce lawyer’s work, but there is a risk it could increase it.  

Over the last decade or so, most judges have recognised divorce law is out of date and that preventing a divorce when a marriage or civil partnership is over helps no-one. In the absence (until now) of the law changing, the Court has been constructive, and adopted an increasingly lenient approach to approving fault-based particulars. Tini Owens’ case was an unfortunate exception!  

In short, divorces have proceeded for very mild reasons for a long time. Because of this, rather than instructing solicitors to apply for their divorce, many people have successfully done this themselves with only a small amount of legal advice in the background. This has helped people focus their legal spend on related children and financial matters, which is where the legal advice is really needed.

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