The FCA – Transformation to Assertive Supervision
The Divorce, Dissolution and Separation Act 2020 (the DDSA) comes into force on 6 April 2022, bringing about no-fault divorce, dissolution and separation. It is the biggest change to the divorce process in almost 50 years, aiming to reduce the opportunity for conflict in relationship breakdown.
For many people, divorce will still be a painful process, but this change means that neither spouse is required, or indeed able, to start the process by making allegations against the other.
The new rules also enable a married couple to make a joint application for divorce, which many will welcome. According to the Family Procedure Rule Committee, this is to “allow parties to reflect in the legal process the fact that an often difficult decision to divorce or seek a dissolution has nevertheless been a mutual one.”
A person who wants to be divorced no longer needs to be separated for two or more years or satisfy the court that certain behaviour has taken place. The parties still have to have been married for at least 12 months and the sole ground for divorce is still that the marriage has broken down irretrievably, but no other facts or details are to be provided. With their application for a divorce, the applicant has to file a statement that the marriage has broken down irretrievably; this is the only evidence required. Accordingly, the respondent cannot contest the applicant’s decision to divorce, and there are no facts to dispute, which will avoid acrimonious litigation such as Owens v Owens  UKSC 41 where one party is forced to remain in an unhappy marriage and is prevented from applying to court for financial remedy.
The respondent can challenge the divorce for other reasons, including lack of jurisdiction, invalidity of the marriage, fraud and procedural non-compliance.
It was anticipated that the DDSA would come into force in autumn 2021 but it was delayed until 6 April 2022 so that amendments could be made to the Family Procedure Rules, court forms and the online divorce portal. The new court forms are expected to be released soon. The provisions for divorce and dissolution are broadly equivalent; for conciseness, I will refer to marriage and divorce but this article encompasses civil partnerships and dissolutions as well.
The new rules update the terminology: petitioner becomes applicant, petition becomes application, decree nisi becomes conditional order, decree absolute becomes final order, defended case becomes disputed case and undefended case becomes standard case, sending the message that an undefended case is the norm. Somewhat surprisingly, the statement of reconciliation is still required.
Time for service - Under the existing law there is no time limit for service of divorce petitions and this uncertainty has given rise to litigation particularly in international cases where there is more than one potential jurisdiction (Thum v Thum  EWCA Civ 624). New FPR 6.6A provides that the applicant must take “steps to serve” the application before midnight on the day 28 days after the date of issue of the application. However, there seems to be no requirement that the service is actually effected within that period. There is a new minimum period of 20 weeks between the start of proceedings and the conditional order, start of proceedings being the time that the application is issued, not when it is served on the respondent, expressly to avoid the respondent’s ability to delay the 20 week period by evading service. Concerns were raised during the consultation that if an applicant were to delay service (by accident or design), this could mean a respondent having very little notice of the divorce before the 20 week period elapsed. However, it was felt that the “greater mischief” would be respondents being able to delay or frustrate service.
New FPR 6.41A and 6.41B specify that the applicant also has 28 days to take steps to serve the application outside the jurisdiction.
Email service - New FPR 6.7A allows the applicant to serve the application by email provided that they also serve, by post or personal service, a notice confirming the service by email. The notice is an essential component of service and so if the applicant does not have an address for service of this notice, they will have to make an application for alternative service in the usual way.
Court to serve application – The default position will now be that the court will effect service unless the applicant asks to do so. New FPR 6.8 provides that where the court is serving the application, it will do so by email and send the notice required by new FPR 6.7A, unless the applicant does not provide the email address for service or request service not by email, in which case the court will serve it by post or some other service that provides next business day delivery.
Acknowledgement of service – New FPR 7.7 provides that the acknowledgement of service must be filed 14 days after the date of service of the divorce application.
Answer – A respondent wishing to dispute a petition will need to file an answer 21 days after the date of the acknowledgement of service (FPR 7.7(5)). The limited grounds for disputing a case are set out in FPR 7.1(3). The FPR Committee declined to make specific provision in relation to foreign disputes and stay applications on the basis that these can be dealt with separately under the Domicile and Matrimonial Proceedings Act 1973.
Where an application is made jointly, the court sends both parties a notice of proceedings (new FPR 7.5(3)). This is to avoid anyone making a fraudulent joint application. Both spouses are required to acknowledge receipt of that notice but the court does not need to be satisfied that those acknowledgements have been filed before granting a joint conditional order.
A joint application can be converted into a sole application, the policy intention behind this being to allow each party to progress the divorce on their own if they want to and to prevent the other party blocking the divorce, which would in turn make the idea of a joint application less attractive. A sole application cannot be converted into a joint application. According to the Family Procedure Rule Committee minutes this was to avoid a sole applicant being able to use the possibility of converting the application into a joint application as a negotiating tool between the parties. A joint application can be converted into a sole application at the time of applying for a conditional order or a final order.
Interestingly, section 10 of the Matrimonial Causes Act 1973 has been amended by the DDSA 2020 so that the court can consider an application by the respondent for the court not to progress the case to final order unless it is satisfied as to the financial provision made. Under the existing law this protection is available only in separation cases.
All in all, very positive news for divorcing couples, with the expectation that any wrinkles in the rules will be ironed out once they are in practice. Practitioners will still be alive to the fact that divorce is an emotional and often distressing process and clients might still wish to articulate and air their reasons for the relationship breakdown. Hopefully they will have the opportunity to do this in a constructive and containing forum such as counselling or mediation, now that waging war in the divorce petition is no longer an option.
This article was first published with ThoughtLeaders4 HNW Divorce Magazine.
Rachel Freeman is a partner in Kingsley Napley’s family and divorce team. She specialises in dealing with financial settlements and the arrangements for children arising upon the breakdown of a relationship.
Rachel’s areas of practice include all aspects of private family work, with particular expertise in complex financial proceedings, often with international aspects and for high net worth individuals, and arrangements for children.
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