Comparative Analysis: The Divorce Process in England and Wales vs Northern Ireland
Divorce and the dissolution of civil partnerships are significant legal processes that impact individuals, families, and society as a whole. Whilst the core aim across both England & Wales and Northern Ireland remains the same—facilitating the legal end of a marriage or partnership—there are notable differences between both jurisdictions. England and Wales have adopted a modernised no-fault divorce system, whereas Northern Ireland retains a more traditional, fault-based approach. This article explores these differences, considers recent reforms, and argues for further changes in Northern Ireland to align with contemporary legal and social standards.
No-Fault Divorce: A Fundamental Shift in England and Wales
In April 2022, England and Wales introduced no-fault divorce, a landmark change allowing couples to end their marriage or civil partnership without assigning blame. This reform was widely praised for reducing acrimony, expediting proceedings, and promoting dignity and autonomy for both parties.
Key benefits include:
Joint Applications: Couples can now apply together, reducing the power imbalance where one party controlled the process.
Reduced Conflict: By removing the need to cite adultery or examples of unreasonable behaviour, emotional strain is significantly reduced.
Streamlined Process: The simplified online system enables self-representation, which empowers individuals to navigate the process either together or enables those with limited financial means to start the process themselves.
Northern Ireland: A System in Need of Reform
Northern Ireland still requires one party to prove fault (e.g., adultery, unreasonable behaviour) or endure long separation periods—two years with consent or five years without consent —before divorce is granted. This approach is increasingly seen as outdated and, in many cases, increases the stress of both parties.
Critics argue that:
The current system causes unnecessary delay and financial hardship, especially in cases involving ancillary relief.
Long separation periods are unfair, particularly for those unable to afford to live separately, or for victims of domestic abuse who may feel trapped in harmful relationships.
The legal process can be inaccessible for those without legal representation, reinforcing inequality and power imbalances.
A modernised, no-fault system would better reflect the realities of contemporary relationships and provide more equitable and humane pathways to divorce.
Should a period of separation be the sole basis to issue divorce proceedings?
While England and Wales eliminated the need for fault or separation-based grounds altogether, Northern Ireland still heavily relies on separation periods. Reform suggestions include:
Reducing separation periods (e.g., to one year with consent or two without), as seen in Scotland.
Broadening the definition of separation, allowing couples to be considered separated even if living under the same roof—similar to the model in Republic of Ireland.
Such changes would make the process more inclusive and realistic, especially for low-income couples and those in complex living situations.
In England and Wales there is no longer a requirement for the parties to have lived separately for any period of time and neither do they have to rely on citing unreasonable behaviour or adultery.
Online Divorce Systems: A Double-Edged Sword
England and Wales now operate an online divorce portal. While this system improves accessibility and efficiency, it is not without flaws:
There are concerns about errors, such as final orders being granted without a party’s consent.
The system does not allow for nuanced or complex cases, such as international jurisdiction disputes or issues around proper/ disputed service.
There is still the requirement for Judicial oversight in respect of the granting of Conditional Orders and Final Orders on Divorce, however there is a risk that applications that fall outside the typical scope of Divorce cases will not be dealt with expeditiously or at times correctly due to administrative errors on the Portal system.
Judicial oversight as to the granting of Conditional Orders and Final Orders is still imperative to ensure the process is concluded fairly for both parties.
Northern Ireland, while recognising the potential of digital tools, is cautious. Reformers advocate for electronic document submission to improve efficiency but retain judicial involvement to safeguard the seriousness and complexity of the process.
The Role of Fault in Divorce
In England and Wales, fault-based grounds have been abolished entirely. In contrast, Northern Ireland continues to recognise fault, and some legal professionals argue that it should remain an option, especially because:
In some cases, fault grounds expedite the end of abusive relationships.
Conduct can be relevant (although rarely) in financial proceedings, and fault may help frame the narrative around asset division.
A hybrid system combining no-fault and fault-based options could provide flexibility and access to justice.
The introduction of no-fault divorce has removed the need to assign blame for the breakdown of a marriage, reducing conflict during divorce proceedings. However, the conduct of one of the parties, if relevant, will still be considered in financial remedy cases under section 25(2)(g) of the Matrimonial Causes Act 1973 and equivalent provisions in the Civil Partnership Act 2004. When conduct is raised the court will consider the conduct of another party if it is deemed "obvious and gross" and if to ignore it would make it unfair to the other party in the proceedings. This sets a high threshold, with examples from case law including severe financial misconduct or actions causing significant harm to the other party.
Mediation and Counselling: Supportive, Not Mandatory
Both jurisdictions encourage mediation and counselling. In Northern Ireland and E&W, there is strong support for voluntary use of these services to:
Explore reconciliation.
Assist in resolving ancillary matters like finances and childcare.
However, in NI there is resistance to making these services mandatory, particularly where domestic abuse is a factor. Forcing mediation in such contexts risks re-traumatising victims and delaying access to justice.
In England and W there is a strong focus on encouraging parties to engage in mediation and other forms of non-court dispute resolution (NCDR). A recent change in the rules has seen the courts adopt a more proactive approach to having parties consider NCDR and mediation. Judges are actively encouraging parties to consider mediation at every stage of proceedings (where appropriate) and have the power to adjourn cases to facilitate such efforts. In cases where one party is refusing to engage in NCDR without good cause such refusals can lead to adverse costs consequences for the party who has refused to consider NCDR. Conclusion
The divergence in divorce law between England and Wales and Northern Ireland reflects a broader debate about tradition versus modernism in family law. While England and Wales have embraced a no-fault, largely administrative system, Northern Ireland retains a more conservative, court-focused approach.
Calls for reform in Northern Ireland highlight the need for a balanced system—one that empowers individuals, reduces conflict, maintains judicial oversight, and reflects the financial and emotional realities of those seeking to end their marriages. Incremental changes, such as embracing digital tools and reducing separation periods, can serve as important steps toward a more just and compassionate system.
The introduction of no-fault divorce under the Divorce, Dissolution and Separation Act 2020 has brought about significant benefits for lawyers and their clients in England and Wales. Most lawyers will say that it has reduced conflict, in particular at the beginning of the process which can be a difficult time for many clients. It has enabled joint applications for parties giving them more control in the process and their own divorce and it has forced practitioners to reconsider how we advise our clients. On the ground it has led to improvements in client satisfaction with the process for divorce and a shift towards a more constructive practice.