No fault divorce came into effect in England and Wales on the 6th of April. As it has widely been accepted this will be the biggest change to UK divorce law in our lifetimes, it’s important to consider how no fault divorce will affect financial settlements.
Under the new Bill, one party will be able to file for divorce without having to prove the other is at fault for the breakdown of the marriage because of adultery, unreasonable behaviour, desertion, two years’ separation with consent or five years’ separation without consent.
Will no fault divorce change the way financial settlements are reached?
Many involved in family law can see no fault divorce will help reduce animosity and conflict during a divorce. However, some family lawyers are asking whether, at the same time, no fault divorce will affect, impact or influence the way financial settlements are reached.
Although some believe the ability to prove the other party’s behaviour was responsible for the end of the marriage, the truth is neither party’s behaviour is only really taken into consideration by the courts if it is thought to be ‘gross or obvious’.
However, determining what constitutes gross or obvious personal conduct at a level that should affect how the marital assets are divided is difficult and would have to be supported by existing case law.
Alternatively, the courts could consider financial conduct. If one party was to be judged as taking action/s that would negatively impact the other party’s financial position, this could persuade the judge to reconsider the financial award. Again, case law would play a large part in underlining precedent.
Although there is the ability to consider both personal and financial conduct, the courts are generally reticent to do so. This means it is highly unlikely that no fault divorce will change this position.
The courts priority remains the fairest financial remedy
Despite the fact no fault divorce will herald enormous change to UK divorce law, the court’s first priority will still be to find the fairest division of the matrimonial assets. This division will be based upon the circumstances, the assets (both ‘matrimonial’ and ‘non-matrimonial’) and both parties’ requirements as it always has been.
Obviously, time will tell us if this is the case.
No fault divorce will of course have to be tested. There is a possibility any dissatisfaction that arises during financial remedy proceedings could increase allegations of improper personal or financial conduct, but one can’t help but think that as the court’s job is to find a fair rather than punitive final settlement, no fault divorce almost certainly won’t affect financial settlements in the short term.
If you would like to discuss a family law case with one of our hugely experienced family barristers, please get in touch today.