No-fault divorce is all about removing the notion of blame from marital breakdown. And following on from that, there’s an expectation that no-fault divorce is less damaging to families than divorce where one spouse has to prove the other’s adultery for example. But it’s important not to over estimate the perceived benefits of a no-fault divorce system. In many respects resolving finances and child issues will throw up the same obstacles whether you divorce under a fault-based or no-fault system. Just because the blame element is removed does not mean you should settle for a less favourable settlement for example. We receive a lot of enquiries about no-fault divorce and in our experience there are a number of misconceptions surrounding the process. Here are a number of factors to consider in relation to no-fault divorce.
How Long Does A No-Fault Divorce Take?
Some people equate no fault divorce with the idea of a quick, no -nonsense procedure. This isn’t necessarily true. In England and Wales the minimum timeframe for a divorce to be completed is six months (26 weeks). Couples must wait at least 20 weeks between starting the process and getting a conditional order of divorce. There is then a waiting period of at least six weeks before you can make the conditional order final. Those behind the no-fault divorce legislation believe the 26 week wait ensures that there is a period of reflection. Where divorce is inevitable, there’s a greater opportunity for couples to agree the practical arrangements for the future.
How Much Does A No-Fault Divorce Cost?
No-fault divorce is not necessarily cheaper than divorcing under a fault-based system. Legal costs largely depend on the length of time it takes to resolve disputes over finances and children. Such crucial issues can be complex and difficult to finalise even in a divorce where there is little personal acrimony between the spouses.
Don’t Forget About Alternative Dispute Resolution (ADR)
ADR is well-suited to the no-fault system of divorce. Because there is no need to blame a spouse for the breakdown of a marriage, we think it’s easier to broach with clients the idea of a more collaborative approach to resolving areas of dispute. We already know that mediation – a form of ADR – is highly successful in keeping couples away from disputed court hearings. Given the 26 week waiting period mentioned above under the no-fault system in England and Wales couples should carefully consider the range of ADR options available to them to resolve issues ahead of the final order of divorce. These include early neutral evaluation and arbitration.
Don’t Overlook Financial Issues
Some financial commentators suggest that when embracing a conciliatory, no-fault approach to divorce one side (usually the financially weaker spouse) might be less inclined to push as hard as he or she should when it comes to pursuing a fair financial settlement. In the interests of reaching a ‘friendly’ divorce he or she may even be reluctant to bring up an issue around finances that is likely to lead to conflict. But financial affairs and pensions – particularly when there has been a long marriage – are often tricky issues for divorcing couples to sort out.
Pensions specialists LCP argues that under a no-fault divorce system there’s at least the possibility that parties won’t give anything they view as complicated, emotionally-charged or time consuming the attention it requires. With this in mind using a specialist family lawyer is important. Not only will expert advice give you the peace of mind that any settlement will protect you financially but when both parties engage solicitors, sensitive issues can be raised at arm’s length on a professional basis. This reduces the need for matters to become personalised and more intractable.
You can’t use blame
In England and Wales there’s only one ground for getting a divorce – the irretrievable breakdown of the marriage. Factors like unreasonable behavior, separation periods and adultery to not come into the equation. Some enquiries we receive are from people who believe they have a choice about whether to opt for a no-fault divorce or pursue a divorce by attributing fault to their husband or wife. It’s important to remember that this isn’t the case.
Comment
So the no-fault system of divorce in England and Wales gives divorcing couples a chance to manage the breakdown of a marriage in an amicable way or at least in a manner that reduces acrimony. It also encourages the use of mediation, arbitration and other forms of ADR that tend to achieve quicker settlements at less cost. But no-fault divorce does not mean difficult issues like division of assets and child arrangements don’t have to be tackled in a realistic and clear-sighted way. Removal of blame from divorce does not mean these difficult issues go away.