The case for no-fault divorce – does Northern Ireland need to modernise its approach?

No-fault divorce in England and Wales is now three years old, with the law fundamentally changing how married couples can end their marriages.

Although the topic has been at the forefront of family law for decades, Northern Ireland has yet to see any change in its approach. Without a no-fault divorce system, many couples here remain tied to a process some view as outdated and unnecessarily adversarial.

But with a system that recognises when a relationship has simply run its course – with no one to blame – has this shift impacted the sanctity of marriage and the long-term wellbeing of spouses?

We recently sat down with Ciara Brolly, Head of Family Law at Wilson Nesbitt, and David Lister, Head of Family Law for Yorkshire at Ward Hadaway, who was the first solicitor in England to act for both parties in a divorce under the new one-lawyer model, a collaborative approach made possible by the no-fault reforms. They share not only how the legal landscapes differ between the jurisdictions, but also how the human experience of divorce is evolving on both sides of the Irish Sea.

The case for No-Fault Divorce

Before 2022, couples in England and Wales could only divorce by proving one of five factors:

• Adultery
  
• Unreasonable behaviour
  
• Desertion
  
• Two years’ separation (if both consented)
  
• Five years’ separation (if only one consented).
  

This meant that if you wanted to divorce, you had to have a pretty good reason linked to one of the above. The downside? This could often cause unnecessary conflict, especially if the split was originally amicable but later escalated due to unnecessary accusations.

Eventually, the Divorce, Dissolution and Separation Act 2020 was passed and came into force on 6 April 2022 in England and Wales. This allowed couples to jointly apply and remove the requirement to state reasons beyond irretrievable breakdown. It also brought in a minimum 20-week cooling-off period to encourage reflection.

Where the nations stand today

While campaigners in England and Wales have continued to celebrate the introduction of no-fault divorce, Ciara notes that Northern Ireland’s progress remains stalled, saying: “The reforms have been proposed, but there is no sign of them.

“The Finance Minister commented last year [2024] that it would have to come later in the current assembly mandate, which runs to 2027. However, I don’t see any change in the near future.”

This is a stark contrast to England and Wales, which, according to David, have seen significant emotional benefits under the reforms.

He says: “It’s made the divorce process better for people emotionally. We have a duty to act in clients’ best interests, and I think a lot of lawyers assume that means saving them the most money. 

“I actually think it means getting them through a divorce able to sit next to each other at their child’s nativity or graduation or wedding. And so when you think about it like that, I think it’s given lawyers more ability to act in clients’ best interests by, if possible, facilitating a good divorce.”

While the full data from the last three years has not yet been released, insights from the Office for National Statistics revealed that in 2022 – the year the law came into effect – out of 80,057 total divorces granted, 7,394 (approximately 9.2%) were processed under the new no-fault legislation. Of these, 28.8% were joint applications, while 71.2% were sole applications.

“They did think that there was a prediction that there would be an increase in applications. But I think from memory there was about a 10% drop that year. So there wasn’t that surge of divorce that people were worried about”, David adds.

In Northern Ireland, Ciara reflects on this and the cultural perceptions that have long been ingrained in Northern Ireland’s conservative landscape. She says: “Younger generations are probably more accepting of divorce and see it maybe more as a solution rather than a failure, and feel maybe less stigmatised compared to the older generation. 

“Northern Ireland has such strong religious and cultural traditions, so I think there definitely has been a slower pace of societal change compared to other parts of the UK.”

But it isn’t just cultural challenges that Northern Ireland must deal with. 

Looking ahead, Ciara believes that several key issues must be tackled before Northern Ireland is ready to introduce no-fault divorce. This includes modernising court infrastructure, addressing case backlogs, and creating space for a more collaborative approach to family breakdowns, such as allowing joint applications. She warns that simply copying the reforms seen across the water, without first preparing the system, risks creating further strain.

“The divorce process here is still very much in person, and I think we are way behind the times on technology. Everything has to go through the courts – you’re there in person, doing everything face-to-face. This puts significant pressure on the court office, and the backlog with the current system is already bad enough without adding the extra demands that reform would bring.”

She adds: “During COVID, everything was done online over in England and Wales. Here, we also moved to remote hearings during the pandemic, and I thought that might have accelerated some change. But it was actually the first change to be reversed, and we are now fully back to in-person processes. So I would like to see some change there.”

In England and Wales, by contrast, no-fault divorce has already encouraged positive changes in how divorce is approached. David explains: “It opened up the gateway to the one-lawyer model – the idea that one person is driving or controlling the process can be taken away now, and that makes one party much more comfortable, thinking ‘Oh yeah, I’ll be a joint applicant rather than responding to what my ex is saying.’”

He adds: “It also removes an element of unnecessary, false hostility. We used to have these six or seven reasons we’d give clients – ‘Are you sick of walking on eggshells all the time?’ – just to find a reason why they didn’t like each other. Those reasons were really silly, and sending them to your partner would naturally wind them up. I’m glad we don’t have that anymore.”

Looking to the future

Both Ciara and David agree that while the reforms have brought progress, there is still more to do – and both offer advice for the years ahead.

Ciara says: “I would hope to move away from the blame game here in the next decade. I think we need to focus on reducing acrimony in the family dynamic, which will ultimately aid resolution overall in terms of the finances. But we also need to make sure the system is properly resourced and prepared before any reforms come in, or we risk making things worse, not better.”

David echoes this call for thoughtful change. He says: “Awareness is really important. If you’re going to go for the no-fault route, get rid of whatever process is in place now – having two processes is inefficient. But also, give people the choice, and make sure the information is properly out there. Any way we can alleviate the emotional and mental health pressures on people going through divorce is worth supporting.”

He adds: “If there’s an appetite to do it, you’ve got to go the whole hog. You can’t just dip your toe in the water. You have to be committed to proper reform, otherwise you just create confusion and frustration for everyone involved.”