Divorce – does it matter whose fault it was?

During a divorce, emotions often run high. We are often still asked whether it matters whose “fault” it was that the marriage broke down. Clearly there are always two sides to the story, but invariably we are told about the circumstances leading to the breakdown of the relationship, and asked whether this will impact the divorce proceedings at all from a legal perspective, and whether one party can be at an advantage if for example the other had an affair.

The answer to that question is a simple no. As from 6^th April 2022 the law on divorce in England and Wales – and the “blame game” – is happily now a thing of the past. Previously a petition needed to be based on one of five “facts” –

• Unreasonable behaviour;
• Adultery;
• 2 years separation with consent;
• 5 years separation; or
• Desertion.

Thankfully, reliance on these facts is now something consigned to history. Given that it is not compulsory nor indeed even possible for either party to blame the other, this undoubtedly makes the process less painful. In practice we have seen the new law reduce animosity and conflict, and indeed costs.

Another helpful change in the law in Spring 2022 was that a divorce cannot be “defended.” One spouse used to have the ability to “defend” a divorce, meaning that they could disagree with the fact the petitioner was relying upon when the papers were served on them. This could mean the process took longer, with some individuals even defending matters just to increase animosity. The removal of the ability to “defend” a divorce means the process is now much more streamlined. 

Furthermore, divorce has been simplified by what is essentially a two-stage process. Firstly, one party, or indeed the couple together, initiate the divorce process by submitting a notice of intention to divorce to the court. After waiting for a period of six months, a conditional order (previously known as a decree nisi) can be applied for. After an additional six weeks, the applicant can apply for a final order (previously known as the decree absolute) officially ending the marriage and achieving a divorce. This is all now done digitally via the court’s “on-line portal.”

Whilst the law and the process regarding divorce in England and Wales has been markedly simplified since the change in legislation, clearly it is still a huge step to end a marriage. It is also important not to forget about resolving the legal financial claims arising as a result of the divorce, and to understand how doing that should dovetail with the divorce application in terms of timing and otherwise. Even though a divorce is really easier than ever before, the legal implications of this remain huge and as such independent legal advice is always recommended.

Taking steps towards ending your marriage can be scary, but here at Franklins we are here to help you make sense of the legalities. We try to make the process of getting the advice you need as easy and pain free as possible. We offer an initial appointment for a cost of £195, during which we try to give you an understanding of your legal position and what the future might hold.

If you feel Franklins might be the right firm to help you following the breakdown of your relationship, and you would like to enquire about when your initial appointment could be scheduled, please contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk