No-Fault Divorce – Q&A
On 6th April 2022, The Divorce, Dissolution and Separation Act 2020 will come into effect. This new legislation allows a person to seek a divorce without a reason or grounds for divorce. The legislation will also mean that a divorce cannot be defended. In our latest article, Alex Williams answers some of your common questions about this new legislation.
What is the current legal procedure for obtaining a divorce?
At the moment, a person wanting to obtain a divorce applies to the court using a ‘Petition’. They must prove that the marriage has broken down irretrievably using one of five different facts:
- Unreasonable Behaviour
- Desertion (although rarely used in practice)
- 2 year separation (with their spouse’s consent)
- 5 year separation (no consent required)
A petition can be defended by the other person in the marriage, on the grounds that the facts stated are not true, although in practice defended divorces are rare. Nevertheless, a quick divorce requires acrimonious allegations which many practitioners feel makes the whole process unpleasant, and makes agreement on issues like child arrangements harder to reach.
Once the petition has been filed at court and the Respondent has formally acknowledged this, and as long as it is not defended, the Petitioner can then apply for the ‘Decree Nisi’ which confirms that the parties are entitled to a divorce. This does not end the marriage.
Once a period of 6 weeks and 1 day has elapsed since the date of the Decree Nisi, the Petitioner may then apply for the ‘Decree Absolute’, which formally ends the marriage.
How is the law surrounding divorce changing from 6 April 2022?
From 6 April 2022, new legislation known as the Divorce, Dissolution and Separation Act 2020 will come into effect.
A person seeking a divorce will no longer have to prove one of the five facts. Instead, it will be presumed that if a person seeks a divorce it should be granted. Allegations of fault will no longer be involved, and the delay for non-fault divorces (2 years by consent, 5 if not) will be removed. Divorce without a required period of separation, or allegations of fault, will be the new norm.
It will also now be possible for couples to make a joint application for a divorce. There will, essentially, be a lead Applicant and a second Applicant, although these labels make no practical difference and both parties are treated as Applicants.
The previous legal terminology is also being simplified. Decree Nisi will now be referred to as the ‘Conditional Order’ and the Decree Absolute as the “Final Order”, making the language plain. The Petitioner will also be referred to as the “Applicant” or “Applicants” (if it is a joint application) with the Petition now being referred to as the “Application” to match.
Will it still be possible for a Respondent to defend a divorce?
The new legislation removes the ability to defend a divorce. Therefore, if a petition is issued under the new legislation, then inevitably the marriage will be brought to an end (unless the parties reconcile or the Petitioner changes their mind).
Having said this, it will still be possible to challenge a divorce on the grounds that the marriage is invalid, that the UK does not have jurisdiction to decide the case or if there are allegations of fraud.
If the application for a divorce is not made jointly with my spouse, can I still ask the court to order that they pay towards my legal fees?
Yes, although unlike under the current rules it will not be possible to make an application for costs in the same way as the divorce application. Any application for costs is made separately.
It is also worth noting that whilst it will still be possible to make an application for costs, this is largely discouraged by the courts who would expect any issue of costs to be resolved by the parties, either between themselves or via their legal representatives.
The court fee for issuing a divorce remains at £593. Parties making a joint application can decide between themselves how to split such fees.
Why is the divorce process being changed?
There is an almost universal consensus amongst practitioners that the current divorce laws have needed revising for some time. Under the current procedure, parties are forced either to delay the divorce for a long time after they separate, or to make allegations of blame for a quicker procedure.
Blame can make agreement harder to find when more practical issues like children and finances are to be discussed, and where a fair settlement is often preferable to the cost, delay and confrontation of a court case.
Many practitioners hope that removing the blame element of a divorce may make matters less acrimonious from the outset and may help the parties focus more on resolving financial matters or focussing on arrangements for their children.
Will the new laws make obtaining a divorce easier?
Whilst it is hoped that the new procedure will make the process of obtaining a divorce more straightforward and amicable, this does not make divorce instant.
After the application has been issued, there will be a minimum 20 week “reflection period” to allow couples time to explore possible reconciliation and to get their financial affairs in order (as far as possible). This is a minimum period, as parties will often need longer than this to sort their finances, particularly if their assets are complex or if they are unable to come to an agreement and financial court proceedings are required.
Once the minimum 20 week reflection period has elapsed and the court has awarded the Conditional Order, there is then a further minimum period of 6 weeks before the parties can obtain the Final Order.
This brings the timescales for a divorce under the new rules to a minimum of around 6 months, making it a longer process.
What hasn’t changed?
A divorce ends a marriage, and once completed the parties are single, no longer treated as each other’s partner, and they can marry again.
However, nothing in the divorce process deals automatically with either arrangements for children or financial matters, and the legal and practical issues around what are often the most important aspects of a separation remain.
It will still be necessary to get advice on the best way forward for your children and your financial situation, and to get help with either a fair settlement or if it comes to it, applying to the court.
Children’s cases, financial matters, and applications to be protected from domestic abuse, still each have their own practical aspects and legal applications.
These are almost always the most important issues for someone separating from their partner to get advice upon, and these have not changed.
Butcher and Barlow
If you are seeking a divorce, it is still incredibly important to seek professional advice to ensure that any financial, custodial, or other matters are properly handled. Butcher & Barlow’s dedicated Family Law department are hugely experienced in all matters related to divorce, so please do not hesitate to get in touch should you wish to organise an initial consultation. Alternatively, please contact Alex Williams on 01928733871, or at email@example.com.