What you need to know about no-fault divorce
Next month we will see the biggest shake up in almost 50 years to the process of divorce as the Divorce, Dissolution and Separation Act 2020 (the DDSA) comes into force on 6 April.
Senior chartered legal executive Sarah McCarthy explains in a series of Q&As why a change in divorce law is happening and what this means for separating couples.
Why is divorce law in England and Wales changing?
Under existing divorce legislation, unless parties have been separated for a period of at least two years, there is a need to cite adultery or behavior to proceed with a petition for divorce. This requirement to attribute blame can often cause unnecessary tension and acrimony between a couple and can lead to an avoidable increase in legal costs.
For many years, family lawyers have campaigned for divorce reform to a no-fault based process, and enactment of the Divorce, Dissolution and Separation Act will at long last see this change take place.
The aim of the new process is to reduce the opportunity for conflict when a relationship breaks down, as a person will be able to start a no-fault divorce without the need to attribute blame. A further welcome feature of the new divorce process is the ability of a married couple to make a joint application.
It is anticipated that a no-fault approach to divorce will enable couples to give improved focus to issues arising from their relationship breakdown in a much more collaborative and constructive way, particularly when it comes to resolving arrangements for their children and in addressing the financial aspects. of their separation.
What is no-fault divorce?
The Divorce, Dissolution and Separation Act 2020 will come into force on Wednesday 6 April 2022 and it will mark a fundamental change in the process for divorce, allowing couples to legally end their relationship without attributing any blame. This change in the law is commonly referred to as ‘no-fault divorce’.
There is no change in the ground for divorce, ie there must be irretrievable breakdown of the marriage, but instead of this being evidenced by one of the existing five facts, (adultery, behaviour, desertion, two years’ separation with consent or five years ‘ separation) all that is now required is ‘a statement that the marriage has broken down irretrievably’. The court must accept this as conclusive evidence that the marriage has broken down irretrievably.
Can a respondent stop the divorce proceedings?
Under the new no-fault divorce process, a respondent cannot contest the applicant’s decision to bring the marriage to an end and there are no facts to dispute. This is a significant shift from current legislation, which enables an opposing party to defend a fault-based petition potentially leading to expensive and acrimonious litigation.
The new no-fault divorce law will only allow a respondent to challenge the divorce in limited circumstances none of which relate to the actual breakdown of the marriage. For example, where there is a lack of jurisdiction, the validity of the marriage is in dispute or there is some other procedural non-compliance.
How are divorce proceedings started?
In broad terms the new no-fault divorce process is as follows:
- One or both parties provide a legal statement to the court confirming that the marriage has broken down (the application).
- The court will usually be responsible for service of the application and if possible, it will do this via email. The court will also need to send a notice of confirmation to the respondent’s postal address.
- The respondent needs to reply to the application within 14 days.
- There must be a period of reflection of 20 weeks from the date the proceedings started before the conditional order for divorce can be made.
- A further period of six weeks and one day (43 days) must elapsed after pronouncement of the conditional order, before the applicant can apply for a final order. A final order ends the marriage.
Are joint applications for divorce now possible?
And it is. The new no-fault divorce process allows for a couple to make a joint application. Where this occurs, the court will send both parties a notice of proceedings. They will be known as applicant 1 and applicant 2 and both will be required to acknowledge receipt of the notice to enable the divorce to proceed on a joint basis.
It is important to note that joint applications are not permissible for nullity proceedings.
Can a joint application for divorce be converted into a sole application?
And it is. In circumstances where a joint application has been made to the court but for some reason one party is then reluctant to progress the proceedings, it is possible for each party to independently move the process forward on their own if they choose to do so. The joint application will then switch to a sole application at the time of applying for a conditional order or a final order.
Can a sole application be converted into a joint application?
No. It is not possible for a sole application to be converted into a joint application so as to prevent any negotiation pressure being applied by a sole applicant towards the other party.
Can a divorce application be withdrawn?
A sole applicant may withdraw their no-fault divorce application at any time before the application has been served on the respondent by giving notice in writing to the court. If it is a joint application for divorce, an application for withdrawal will require both applicants to apply.
Is it possible for a respondent to delay the final order?
In some circumstances it may be possible for a respondent to delay a final order where that party has applied to the court for consideration of their financial position after divorce. It is sensible to take early advice about delaying a final order where this is an issue in your case.
What is the new terminology?
From 6 April 2022 there is a fresh approach to the terminology that will be used in the no-fault divorce process.
What is the cost of no-faut divorce likely to be?
Costs will vary depending on whether you are legally represented and/or whether you can obtain any help with your legal fees.
If you are on a low income or unemployed you may be able to use the Help With Fees Scheme – Form EX160: Apply for help with court and tribunal fees – GOV.UK (www.gov.uk)
In some circumstances, you may be eligible for legal aid. To ascertain if you are eligible, you can check online via this link – Check if you can get legal aid – GOV.UK (www.gov.uk)
Help with Fees will only be available on a joint application where you both have limited savings and either get certain benefits or have a low income. If this only applies to one party, then Help with Fees will not be available unless you issue a sole application.
There is currently a court fee of £593 paid to the court when the divorce application is made.
Can I pursue a claim for costs against the other party?
The ability to pursue costs under the new no-fault divorce process is now likely to be much more difficult, particularly in a standard case. This is primarily because the purpose of the new procedure is to remove blame and conflict so that there is co-operation and a conciliatory approach.
Should I get divorced now or wait for the new no-fault divorce rules?
It is entirely a matter for you as to whether you choose to wait for no-fault divorce or proceed now under current legislation.
Where you are unable to rely on a period of separation to start divorce proceedings, you may wish to avoid the need to attribute blame by citing adultery or complaining about the behavior of the other person and therefore decide to wait until 6 April 2022. However, While there may be practical benefits in waiting for the new no-fault law, (such as the prospect of reduced animosity) you really should take legal advice before making a decision about what is best in your circumstances.
There may be unintended financial consequences of waiting until the 6 April 2022. In addition the imposition of a minimum 20-week period of reflection to conditional order and a 26-week period to final order, is likely to mean that in cases where parties have been able to agree an early resolution of their financial separation, the court will not have the power to make an order before 20 weeks after issue of the application and it will not be enforceable for at least 26 weeks. This could be prejudicial in some cases and will need to be considered with your solicitor.
In most cases it will not be possible to apply for a divorce under current legislation after 31 March 2022. Therefore, if you decide it is important for you to apply for a divorce before the no-fault process takes effect, then it is urgent that you take immediate action, as time for this option is fast running out.
What about dissolution of civil partnerships?
The law on dissolution of a civil partnership will be updated to fall in line with the new law on divorce.