No fault divorce - what's happened to the five facts?

Today, the Divorce, Dissolution and Separation Act 2020 comes into force and with it brings "no fault" divorce. It marks a major change in divorce law in England and Wales

Up until today, to apply for a divorce or dissolution, a spouse had to prove to the court that the marriage had irretrievably broken down.They had to do this by proving one of five so-called "facts":

  • that the other spouse had committed adultery (although this was not an option for civil partnership dissolutions) and they found it intolerable to continue living with them;
  • that the other spouse had behaved in such a way that they could not reasonably have been expected to live with them;
  • that the other spouse had deserted them for at least two 2 years;
  • that the couple had been separated for at least 2 years and both agreed to the divorce; or
  • that the couple had been separated for 5 years.

The facts meant that the only way to proceed with a divorce immediately was to rely on either adultery or behaviour. Inevitably, this meant that hostility between a couple was heightened from the outset as both of these require one spouse to blame the other. This was required even if the parties mutually agreed that the relationship was over or simply felt that their marriage had come to an end through no fault of either of them.

Today’s new law brings into effect "no fault" divorce by removing the five facts completely. Instead, the application for divorce now only requires confirmation that the marriage has broken down irretrievably. This can be provided by one spouse or by the couple together (we will be covering the topic of joint applications in a separate blog). The court must take this statement as conclusive evidence that the marriage has irretrievably broken down. The court is no longer interested in how the marriage broke down, only that it has.

Divorce can be difficult enough.  By removing the five facts and the need for couples to attribute blame, it is hoped that couples will be better placed to focus on and agree arrangements for their children or finances.  

Various other changes have come into effect today as a result of the Divorce, Dissolution and Separation Act 2020, and we will be looking at those in upcoming blogs. If you would like to find out more about no fault divorce, our team would be happy to help you.

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