On 6th April 2022, the UK introduced a landmark reform to Family Law: the no-fault divorce. This new legal framework removed the need for one party to assign blame to the other in order to end a marriage, aiming to instead create a more amicable and less adversarial process. The government hoped this change would not only ease emotional strain on families but also reduce the burden on the Courts by avoiding lengthy disputes about why parties have separated.
While the reform has been widely welcomed, it has not been without criticism. Over three years later, questions remain about how far no-fault divorce has actually changed the scope of Family Law.
Recent figures suggest a mixed picture. In 2023, there were 110,770 divorce applications submitted under the new system. However, the average time to finalise a divorce stood at 69 weeks (according to data from the Law Society). This is a significant increase compared to pre-reform times, when divorces typically took around 50-55 weeks to complete. While delays may be attributed to administrative backlogs after COVID or the digital transition, it’s clear that the new process hasn’t yet led to faster outcomes. However, it is possible that the timescales are unlikely to be affected if parties are seeking proper legal advice on holding off whilst they conclude the financial matters. No-fault is ultimately not going to make a difference to the financial remedy outcomes, so perhaps this may not be the best way to quantify no-fault’s impact.
The no-fault process has been standardised with all applications now being submitted through the MyHMCTS portal. Marriage certificates can be submitted as clear photographs (sometimes mitigating the need to make further requests for certified copies), and can be applied for from anywhere in the world provided the Court has jurisdiction.
Notifications and updates are delivered to both parties automatically through the new online portal offering convenience and accessibility. However, concerns remain about digital exclusion. The Law Society Wales in particular have voiced concerns about the legal deserts that exist, where high streets are utilising fax machines and do not have the funding or knowledge to proceed paperless. People without reliable internet access, older individuals unfamiliar with online systems, or those needing translation services may find the process less accessible. The paper route still exists, and is still being used as a backstop when the online system faces errors, but there is no doubt that this is a time-consuming and more costly alternative.
While the no-fault divorce system was designed to be simpler, some practical issues have emerged.
Firstly, if a joint applicant withdraws at any point, the process cannot continue without consideration as to a new petition entirely or process serving. Sometimes, the cost of service means that parties elect to re-apply as a sole applicant which can create significant confusion for the Court and practitioners. The advice from practitioners generally is that a sole application should be prioritised for this reason, unless there is extremely open communication. The introduction of no-fault has meant that we are seeing an introduction (or increase) in parallel divorce petitions running, due to non-engagement or the petition being used as leverage.
Joint applications appear more amicable but in reality, they do demand consistent co-operation at every stage. Parties are always advised to consider the difficulties that could arise, especially if tensions are likely to rise during Children Act or Financial Remedy discussions. Whilst the spirit of the application is indeed more amicable, it is not likely to prevent any issues from becoming contested.
Saying this, no-fault does provide the modern benefit of allowing both parties greater freedom to separate on their own terms, for private reasons, and without needing to assign a reason (as sometimes, there is none). We have moved on from the archaic position of there needing to be a significant threshold of damage done, before a marriage can legally come to an end. Practitioners often see cases where parties have simply fallen out of love, and that is all that is required.
The relief expressed by separated couples when they understand that there is not going to be a trial on fault, or a ‘race’ to issue the petition, is tangible. On the whole, petitions tend to be filed quicker without there needing to be a pre-emptive chat about what is being included. Despite there being no obvious benefit in parallel Financial or Children Act proceedings, a lot of time could be taken on debating who is issuing the petition or trying to agree a tracked-changed version of allegations.
The introduction of no-fault divorce is undoubtedly a positive step in the modernisation of the law. It supports personal autonomy and aims to minimise conflict. However, the practical challenges highlight how the system is still a work in progress and this is only one step in the general ‘cog’ of Family Law acrimony.
To support those considering divorce under the current system, here are a few practical tips:
1. Choose carefully between a sole and joint application. While joint applications may seem amicable, they require co-operation at every stage. If you're unsure about your spouse's engagement, or anticipate contested issues, a sole application may be more practical.
2. Expect delays. Though designed to streamline the system, no-fault and general backlogs mean that divorces still taking far longer than a lot of international systems to be processed, so plan accordingly. It is always useful to try and iron out Financial Remedy matters at the earliest opportunity, instead of waiting for one aspect of the divorce to be processed at a time. You should also make the application as soon as you are both in agreement that there is no prospect of reconciliation.
3. Get support if you're digitally excluded. If you're not confident using online systems, speak to a solicitor who can guide you or manage the process on your behalf. Many Family Courts offer free assistance for preparation and drafting (such as Support Through Court) and it is hoped that digital inclusion hubs will begin to surface to address these problems in the coming years.
