How does no fault divorce work?

Currently to be able to start your divorce proceedings there needs to be an irretrievable breakdown of the marriage.

To prove this the Court must be satisfied that one of the following facts are met.

• Adultery
• Unreasonable behaviour
• Desertion
• 2 years separation with consent
• 5 years separation without consent

This means that spouses wanting to divorce without delay must rely on either unreasonable behaviour or adultery.  You cannot rely on your own adultery and to use adultery of the other that person must either admit it or you must prove that adultery has taken place. Consequently, the current law requires one party to place blame on the other.

The New Law: No-Fault Divorce

As explained in a previous blog: The No Fault Divorce Bill and the shift away from the 'blame game', the law has been reformed here and the No Fault Divorce Bill is to be implemented in 2022. The main changes are as follows:

• The fault based aspect of the divorce (e.g. your spouse’s unreasonable behaviour or adultery) will be removed. This should allow for a more amicable start to the process.
• The option for one party to contest the divorce will be removed.
• Spouses will be able to make joint applications for divorce.
• The divorce can also be finalised after 6 months from the petition being sealed from the Court.

It is, however, important not to rush and finalise your divorce as you should always consider the financial implications of your divorce being finalised. It is important that you take legal advice on this as you may be better placed financially to remain married to your spouse whilst financial matters are being settled.

A move towards a system based on no-fault allows couples to start the process on a mutual basis. It should encourage couples to be less confrontational and enable unnecessary litigation to be avoided.

If you are considering a divorce or dissolution, please contact our Family Law Team, who will be able to advise you on your individual circumstances.