How no-fault divorce works
The long-anticipated Divorce, Dissolution and Separation Act 2020 came into effect on 6 April 2022, changing the landscape of divorce law for the first time in almost 50 years, and along with it, the language we as family lawyers and our clients have become accustomed to over the years.
The act, which introduces no-fault divorce, retains the sole ground of irretrievable breakdown of the marriage or civil partnership, but introduces the following changes:
- The requirement to establish one or more facts to prove irretrievable breakdown has been removed altogether, meaning couples will no longer have to either blame one another or wait up to five years from the date of separation.
- The language is updated from ‘decree nisi’, which will become ‘conditional order’, ‘decree absolute’, which will become ‘final order’, and ‘petitioner’ (the person who makes the initial application), which will become ‘applicant’. This brings the language into the present and aligns it with Resolution’s codes relating to clear communications.
- The act also introduces joint applications – a novel concept – where a couple can agree that the marriage or civil partnership has irretrievably broken down and apply for a divorce together.
- It will no longer be possible to contest an application for divorce, dissolution or separation, apart from in limited circumstances relating to jurisdiction or procedure.
- A new minimum period of 20 weeks from the application having been issued until the ‘conditional order’ can be made will be introduced to enable the parties to reflect on their circumstances prior to a final order being granted.
The six-week period between the pronouncement of the conditional order and the final order will remain, bringing the minimum period from the issue of the application to the final order being granted to six months in total.
The benefits of no-fault divorce
- Blame will no longer be part of the process. It is hoped that this will enable couples to separate more amicably, focussing their energy on supporting their children through an undoubtedly difficult time and dealing with the resolution of their finances more cooperatively.
- Although contested divorces are rare, they can cause enormous levels of stress. The possibility of a contested divorce will be greatly reduced and limited to procedural and jurisdictional issues.
- The new timescales envisage a scenario where couples have the time to deal with the other issues arising on their separation including arrangements for their children and their finances, as well as a period to reflect on their circumstances. This is likely to assist couples in prioritising their relationship with one another and being communicative and amicable in their dealings with one another, thereby allowing them to complete the process more efficiently.
No-fault divorce procedure
This very helpful information pack was prepared recently by the Ministry of Justice and sets out the procedure in detail.
In brief, the process for the two types of application is set out below:
Parties themselves, or their lawyers, will log in to the HMCTS portal. If a party is not represented, it is open to them to use the paper application form too. Lawyers must use the digital application form.
The applicant will complete his or her details and a statement as to why they consider the marriage or civil partnership has broken down irretrievably. The applicant will also complete the respondent’s details.
Once the application has been issued by the court, it will be served by the court on the respondent.
The respondent can only contest the application if one of the following applies:
- A jurisdictional issue, for example where neither party lives in or has any connection with England and Wales.
- Where the validity of the marriage is disputed.
- Where a divorce has already been completed, for example, in another country.
Service will normally be affected by email, where the applicant has provided an email address for the respondent to the court within the application. Otherwise, it will be affected by post. The applicant may request to serve the application themselves and the court will allow this but expect service to be affected within 28 days of the issue of the application. If the respondent is based outside the jurisdiction, then again, the applicant will need to serve the application within 28 days and pursuant to the laws of the jurisdiction in which the respondent is based.
Once the application has been effectively served, the applicant will be notified and can apply for the conditional order. This will be pronounced 20 weeks from the issue of the application. The final order will be granted six weeks later.
A similar procedure for this type of application is required. The only difference being that the parties will be joint applicants and will be known as applicant one and applicant two.
There are some circumstances in which joint applications may not be appropriate, for example, where there has been domestic abuse. However, it is expected that joint applications will be encouraged.
It should be noted that sole applications cannot be converted to joint applications and therefore it is important to note the implications of each process before embarking on your chosen application. Joint applications can however be converted into sole applications. This switch takes place at conditional order or final order stage, when one party can give notice of their intention to make a sole application to the other.
Again, unrepresented parties may use the paper application form, while lawyers should use the digital application form only, unless one lawyer is representing both parties.
Service is not required for joint applications and therefore once the application has been issued by the court, the parties can jointly apply for the conditional order 20 weeks later, followed by the final order six weeks thereafter.
Resolution, a community of family justice professionals with a non-confrontational approach to family issues, aiming to provide better outcomes for separating families, and many other family practitioners have campaigned tirelessly for no-fault divorce over the past several decades. It is a welcome change that the law is now more aligned to our societal norms and expectations. Hopefully, clients too will really see the benefit in this sea change.