The no fault divorce system will soon mark its first anniversary. Before the no-fault divorce law came in to force on April 6, 2022, one of five reasons for divorce namely adultery, unreasonable behaviour, desertion, separation for 2 years with consent and separated for years with consent had to be proven, which often only served to fuel any acrimony.
The newly implemented system removes the requirement to establish irretrievable breakdown of the marriage. Thus, married couples can divorce without apportioning blame.
However, this does not mean that there are not complications and pitfalls but Duncan Lewis Specialist Divorce Solicitors can guide you through the process.
The new amendments are enshrined in the Divorce, Dissolution and Separation Act 2020 ("the 2020 Act") which amended the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004.
What are the new changes?
- The current requirement to evidence either a conduct or separation 'fact' with the provision of a statement of irretrievable breakdown of the marriage has been replaced. The court's decision about whether or not to make a divorce order is no longer dependent upon findings of responsibility on either party for the breakdown of the relationship.
- The possibility of disputing the decision to divorce is removed, with limited exceptions relating to jurisdiction or validity of the marriage. There will be separate hearings to determine the issues raised.
- There is a new minimum period of 20 weeks from the start of proceedings to a conditional order of divorce being made. This period gives couples time to reflect and agree separate arrangements relating to: Dividing their finances; agreeing to maintenance payments (where necessary); and sorting out child residence/contact arrangements.
- The language pertaining to divorce has also been simplified. The term 'decree nisi' has been replaced with 'conditional order', 'decree absolute' with 'final order' and 'petitioner' with 'applicant', making it easier for litigant's in persons to understand.
The application for divorce can be made both digitally and online and can be filed jointly or solely. There will be a minimum period of 20-weeks between the start of proceedings and applying for a conditional order of divorce.
On receiving the application, the respondent needs to file an acknowledgment of service within 14 days beginning with the date on which the application for a matrimonial order was served.
Once the court has issued the application, there will be a minimum 20-week period from the date on which the application was issued before the applicant(s) can apply to the court for it to consider the making of a conditional order of divorce.
The court will send the application to the respondent unless the applicant wishes to do so. The application can be served by email, which must be accompanied by postal notification that service has taken place by email.
The postal notification is a letter, which will be sent to the respondent's postal address telling them that an application has been made, and that a link to view the application has been sent by email. The applicant will get another chance to ask the court to serve again at an alternative email/postal address if the service fails.
A party in whose favour a conditional order has been made may give notice to the court that they wish the conditional order to be made final. Where the conditional order was made in favour of joint applicants both parties may jointly give notice to the court that they wish the conditional order to be made final.
An application can then be made for the conditional order to be made final after the end of the period of six weeks from the making of the conditional order. This is done by the party in whose favour a conditional order has been made giving notice to the court that they wish the conditional order to be made final.
Where the conditional order was made in favour of joint applicants, both parties may jointly give notice to the court that they wish the conditional order to be made final. Together with the existing minimum six-week period between conditional order and final order of divorce this will mean that divorce for most people will take a minimum of 26 weeks or 6 months, with additional time for the conditional order application to be considered and pronounced. If the couple need more time to complete their divorce, then the law will allow for this.
Can divorce proceedings be defended?
It is no longer possible for Respondents to defend proceedings for a divorce unless they are disputing the validity or subsistence of the marriage, if jurisdiction is an issue, or a party has already applied for a divorce order which has not been disposed of. The process will slow down if the Respondent indicates that they want to defend the proceedings and they will have 21 days beginning with the date by which the acknowledgment of service was required to be filed to file and serve an answer if they wish to dispute proceedings.
Can costs still be applied for?
The parties' conduct in relation to the proceedings will not be overlooked. The court will therefore consider all circumstances, such as whether costs have been incurred or increased as a result of attempting to evade service or raising irrelevant arguments and may make an award of costs in favour of the party responsible.
A separate application using form D11 would need to be made to the court to ask for a costs order.
If the Applicant is on a low income or in receipt of state benefits an application can be made to the court for help with court fees by completing an EX160 form "Apply for help with fees".
What no-fault divorce mean for separating couples?
With the new time scales, most couples will have to wait about 6 months for their divorce or dissolution to finalise. This time is intended to be a period of reflection for both parties to consider whether they truly want to separate.
During this time, couples still need to make separate arrangements to:
- Divide their finances
- Agree to maintenance payments (if necessary)
- Sort out child residence/contact
- Agree on an ongoing parenting plan
Originally published 17 February 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.