No-Fault Divorce in England: Progress, But With Pitfalls

15/07/2025
7 min read

A Groundbreaking Shift in Family Law

On 6 April 2022, England and Wales introduced a transformative reform to its divorce law—the long-awaited shift to a “no-fault” divorce system. Hailed as the most significant change in family law since 1969, the new framework was designed to modernize divorce, simplify proceedings, and remove the outdated blame-based structure that many believed caused unnecessary conflict and emotional distress.

This reform enables couples to divorce without placing fault on one another and allows for joint applications—symbolizing a mutual decision to separate with dignity. It also introduces a streamlined digital process, default service by email, and a structured timetable intended to reduce animosity and confusion.

Yet, as with any sweeping reform, the practical application of the law is revealing cracks in its foundation. These issues—particularly concerning the rights and experiences of respondents (those on the receiving end of divorce applications)—have raised concerns among legal professionals. This article explores several of these emerging pitfalls.

1. The Unequal Timetable: Respondents Still Face a Three-Month Delay

In a no-fault divorce system, it would be reasonable to assume that both parties—the applicant and the respondent—would have equal footing throughout the process. After all, the whole point is to move away from finger-pointing and allow separation without blame.

But surprisingly, the new law retains a legacy provision from the Matrimonial Causes Act 1973 that creates an imbalance. While the applicant can apply for the final divorce order (formerly the decree absolute) six weeks after the conditional order (formerly the decree nisi), the respondent must wait an additional three months—totaling 4½ months.

In practice, this means a respondent who has done nothing wrong, and who may fully agree to the divorce, is forced to wait 12 weeks longer than the applicant before finalizing the separation. This discrepancy undermines the no-fault principle and introduces unnecessary procedural inequality.

This anomaly, outlined in section 9(2) of the Matrimonial Causes Act, is now widely seen as outdated and discriminatory. Unless promptly addressed, it may continue to frustrate those trying to navigate an already difficult time in their lives.

2. If the Applicant Drops Out, the Respondent Is Sent Back to Square One

Another overlooked scenario with serious implications involves the applicant choosing not to proceed with the divorce after initiating it. Under the old system, the respondent could file a cross-petition and continue the case. But under the new rules, the respondent must now start a completely new application—from scratch.

That means the respondent must refile, restart the 20-week reflection period, and potentially face months of additional delay, simply because the original applicant decided not to move forward.

This creates not only logistical challenges but also strategic dilemmas. For instance, in the old system, an applicant might be encouraged to proceed in good faith with an agreed timeline—sometimes even offering undertakings as a condition for avoiding a contested divorce. With no-fault divorces, those defensive measures no longer apply.

Family lawyers have already begun to question whether it would be reasonable to "abridge" the second 20-week period if the first had already passed. Such a solution could save time and stress. However, until formal changes are made, respondents may find themselves unfairly delayed by a process meant to be fair and simplified.

3. Delays Can Be Tactical—Especially in Financial Disputes

While delays by the applicant may sometimes seem obstructive, they can also be strategic—and even necessary—especially in cases involving complex financial settlements.

For example, if an applicant knows they are likely to seek a court order regarding pensions, life insurance, or significant assets, it may be unwise to proceed with the final divorce order too quickly. Finalizing the divorce before financial orders are secured can lead to loss of spousal rights, particularly if one party dies in the interim.

Therefore, some applicants may intentionally delay applying for the conditional order to buy time for financial negotiations. But this opens the door for the other party to potentially rush ahead and obtain the final order—causing serious prejudice to the applicant.

To mitigate this risk, parties are encouraged to provide undertakings—formal commitments not to apply for the final divorce order until a financial agreement is reached. Unfortunately, the law currently offers no mechanism to enforce these agreements, especially if mutual cooperation breaks down.

The Law Society had previously recommended a legislative safeguard: that no final divorce order be granted if it would materially prejudice either party’s financial claims. However, this suggestion was rejected. As it stands, only respondents (not applicants) can invoke section 10(2) MCA to delay the final divorce on financial grounds—a clear imbalance in procedural rights.

4. Confusing Service Rules: Email Must Be Backed Up by Post

One of the most celebrated features of the new divorce law is its embrace of technology. Email service is now the default method for delivering court documents—a long-overdue change in the digital age.

But there’s a catch: the law still requires that divorce papers be sent to a physical address via first-class post alongside the email. In practice, this makes little sense—particularly when the parties have no ongoing physical contact, and email is their only means of communication.

Even more problematic is what happens when the postal delivery fails (e.g., returned as “unknown”) while email delivery clearly worked. Is the service valid? Possibly not.

This rule appears to reflect an outdated lack of confidence in digital communication. It introduces extra cost, delay, and confusion for little real benefit. Legal professionals are calling for a swift review and update to reflect modern realities—where email is often the most reliable and immediate form of contact.

5. Joint Divorce Applications: Great in Theory, Risky in Practice

A much-welcomed innovation in the new law is the ability for couples to file for divorce jointly. This symbolic gesture allows both parties to state, together, that the marriage has ended—without one being the “blame-giver.”

However, this option comes with a caveat: both parties must continue cooperating at each stage. If one party decides to withdraw or simply stops engaging—at either the conditional or final order stage—the process becomes significantly more complicated.

For instance, if one spouse pulls out before the conditional order stage, the other must serve notice and proceed unilaterally. If the breakdown occurs after the conditional order and before the final order, the applicant must give 14 days' written notice of their intent to proceed alone.

This introduces extra procedural hoops and often causes unexpected delays. While joint applications reflect the spirit of no-fault divorce, they require a high level of trust and communication—something not always realistic in real-world breakups. Lawyers may need to advise some clients to proceed solo from the outset if cooperation is uncertain.

6. No Way to "Convert" Sole Applications into Joint Final Orders

One surprising omission in the new law is the inability to convert a sole application into a joint application for the final divorce order.

In many real-life situations, a couple may start with one party filing for divorce, while the other initially resists. Over time—through negotiation, counselling, or simply acceptance—both parties may come to agree the divorce is for the best.

At that point, they might wish to apply jointly for the final order as a gesture of mutual resolution. But the law doesn’t allow it. The structure of the case is frozen at the outset: if it started as a sole application, it must finish that way.

This restriction seems out of step with the intentions of a flexible, non-confrontational divorce model. Many practitioners and family justice advocates hope this issue will be corrected in future legislative amendments.

Conclusion: A Step Forward—But Not Without Stumbling Blocks

There’s no question that the introduction of no-fault divorce in England and Wales marks a major step forward. It reduces unnecessary conflict, streamlines the process, and reflects modern attitudes toward separation.

But implementation matters. The law, while progressive in theory, still drags along the baggage of its predecessor. Imbalances between applicants and respondents, confusing procedural rules, and inflexible structures could undermine its potential.

As the legal profession begins to work with this system in real time, continued evaluation, feedback, and adjustment will be essential. The goal should be clear: make the no-fault divorce truly fair, modern, and accessible—for everyone involved.

Family lawyers, policymakers, and the Ministry of Justice now face the challenge of refining a system that, while improved, is still a work in progress.

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