No-fault divorce in brief: 10 things you need to know now

5 April 2022

From 6 April 2022, the divorce process in England and Wales will see wide-ranging changes as a result of the provisions of the Divorce, Dissolution and Separation Act 2020 taking effect. This came about following decades of campaigning by many including Resolution to help families navigate the process in a less adversarial and more constructive way. For those contemplating divorce, and for non-family law professionals and loved ones advising and supporting them, the new process and the depth of legal analysis and commentary can feel daunting.

Here, Cate Maguire provides a breakdown of the 10 things you need to know:

  1. No need to prove marriage breakdown and the five facts have gone -  It is no longer possible to defend a divorce on the basis that the marriage has not broken down irretrievably. The applicant’s statement of irretrievable breakdown is decisive, and they no longer need to rely on a supporting fact (unreasonable behaviour, adultery, 2 or 5 years’ separation or desertion) to evidence that.
     
  2. Limited remaining grounds for defending a divorce – A divorce application can now only be disputed (a) on the basis of jurisdiction, (b) because the validity of the marriage is disputed, or (c) because the marriage has already been legally ended (such as by a prior overseas divorce).
     
  3. An end to archaic language – The outdated terminology previously used has been replaced with more user-friendly wording, and dispensing with some of the opaque Latin terms previously used. In particular, divorce petitions are now divorce applications, decree nisi is now a conditional order, and decree absolute is now a final order.
     
  4. 6 month minimum timescale – The new rules introduce a mandatory 20-week waiting period from the date that the court issues the application before it is possible to apply for a conditional order (the interim decree of divorce). The existing 6-week waiting period between conditional order and final order still applies, meaning that the minimum timeframe for a divorce is 26 weeks – the reality, factoring in court delays and processing times, is that the process is likely to take at least 7-8 months.
     
  5. Joint applications are now possible – For the first time, spouses can now apply jointly for divorce, reflecting the fact that they have both concluded that the marriage has broken down irretrievably. Both parties will be treated as applicants, and the procedure for joint applications is more streamlined as the requirement to serve the petition upon the respondent falls away.
     
  6. Converting a joint application to a sole application - Joint applications can be progressed by one party on a sole basis if the other no longer wishes to proceed as a joint applicant. The party seeking to progress the divorce can do so by applying for a conditional or final divorce order as a sole applicant, without needing to amend the original joint application.
     
  7. Online process – For all divorces involving parties represented by a solicitor (other than those cases where one solicitor is acting for both parties), the court’s online divorce portal must be used. Litigants in person can continue filing applications via post if they prefer.
     
  8. Service timescales – New rules have been introduced requiring divorce applications to be served on (i.e. sent to) the other party within 28 days of it being issued by the court. Previously, there was no such deadline for service, meaning that some applicants (if there were a potential jurisdiction dispute) would start divorce proceedings but then keep the other party in the dark until they decided it was the right time to serve them.
     
  9. Email service – For the first time, serving a divorce application via email is not only permitted in all cases, but will now be the default form of service by the court. The emailed application will, however, need to be followed by a postal notice.
     
  10. Costs – Although it remains possible for the applicant to seek an order that the respondent meets their costs of the divorce, the process for seeking costs is now more complicated, and it is generally anticipated that judges will be less likely to make an order that the respondent meet the applicant’s costs of the divorce. In more positive news, the divorce process should now be cheaper, because there is no longer a need to prepare examples of the unreasonable behaviour relied upon, or to seek to agree that wording with the respondent to reduce the prospects of them defending the petition.

The above represents a whistle-stop tour of the key changes to the divorce process. For a more in-depth analysis of the changes, and their impact on the divorce landscape, see Rachel Freeman’s article here.

FURTHER INFORMATION

If you have any questions about the issues raised in this or other blogs in this series, please contact a member of our family and divorce team

 

ABOUT THE AUTHOR

Cate Maguire is an associate in the Family Team, advising clients on matters including divorce and civil partnership dissolution, associated financial issues and issues surrounding children. She has particular expertise in jurisdictional issues and complex financial matters.

 

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