No Fault Divorce is now law
The long-awaited enactments that pave the way for “no fault” divorces, have now become law. This article provides an overview of the previous divorce laws, the changes, and their possible implications.
What was the “old” law?
Until today (06/04/22), to commence divorce proceedings in England and Wales, the “petitioner”, now known as the Applicant, the person submitting the application for the divorce, had to demonstrate that the marriage had irretrievably broken down. This was done by the petitioner proving one of the five permissible grounds for divorce: –
- Unreasonable behaviour
- Two years separation where both spouses agree to the divorce; and
- Five years separation where one spouse does not consent to ending the marriage
How has the divorce process changed?
Under the new Divorce, Dissolution and Separation Act, there is only one ground for divorce – this being the irrevocable breakdown of marriage. There is no longer a need to allocate blame or wrongdoing to begin the divorce. This means that you cannot contest a divorce unless you are contesting on the grounds of validity of the marriage.
The new system will also allow parties to apply on a joint basis whereas previously only one spouse could apply for a divorce.
The new divorce process still includes the two-stage approach of there first being Decree Nisi (now known as a ‘Conditional Order’), marking the halfway point in the divorce, and then secondly the Decree Absolute (now known as the ‘Final Order’), the certificate that the court sends to confirm that the divorce is finalised.
The new rules also apply to the dissolution of civil partnerships.
How do you apply?
If you are a solicitor acting for a sole Applicant for divorce, you MUST use the digital service. If a solicitor is acting for joint applicants (yes, the same solicitor can act for both parties in some circumstances) then the divorce application MUST use the paper application.
If you are a litigant in person, then you can issue your divorce application either on paper or digitally unless the other party is represented in which case you must apply for your divorce digitally.
How long is it going to take?
The new divorce laws have changed the timings and procedure of applying for divorce. As an overview, the general procedure will probably look a bit like this: –
- The Applicant will file their application for divorce
- Within 28 days, either the court or the Applicant will have to serve the application for divorce on the Respondent or on both parties if the application for divorce is a joint application
- Within 14 days of the divorce application being served, the Respondent must file their Acknowledgement of Service, confirming that they have received the divorce application and then send this back to the court
- If the Respondent intends on disputing the divorce application (more on this, below), then this has to be done within 35 days.
- Only after 20 weeks from the date of the divorce application being issued can the Applicant make an application for a Conditional Order (the old “Decree Nisi”)
- The Final Order (the old “Decree Absolute”) can only be applied for 6 weeks after the date the conditional order was made
The Final Order shouldn’t be applied for until all financial issues have been resolved.
Can you dispute whether a marriage has broken down?
The Respondent to the divorce – the person receiving the divorce application, cannot dispute that the marriage has broken down. A joint application for divorce cannot be disputed. If you are making a sole applicant application for divorce then the divorce can ONLY be disputed on the basis of jurisdiction, that the marriage has already been legally ended or on the basis of the validity of the marriage. There are no other reasons you can use to dispute a divorce application.
What are the safeguards?
The new law introduces a 20-week “period of reflection” before the divorce becomes final. This acts as a safeguard and aims to provide the spouses with a final period of contemplation, encouraging the couple to work through their difficulties before concluding the divorce process.
What are the benefits of the new changes?
The removal of the requirement to allocate blame intends to enable the process to become more amicable and efficient. By submitting the fact that the marriage has simply failed, instead of seeking to hold someone accountable and supply evidence in support of a spouse’s wrongdoing, the changes may alleviate stress and prevent further deterioration in the parties’ relationship. This is particularly important in cases where the spouses have children and will have to co-parent following the conclusion of the proceedings.