No fault divorce and what it means for you
What is happening on 6 April 2022?
The family procedure Amendment rules of 2022 will give procedural effect to the divorce, dissolution and separation act of 2020. On 6 April 2022 a person in a marriage or a civil partnership will be able to file a no-fault divorce without needing to blame their spouse or civil partner for the breakdown of the marriage/civil partnership.
What is the reality?
There has been a permissive route in place for many years. It is already possible to issue a no-fault divorce petition but only if a couple have been living separately for over 2 years and the other party consents. The problem of needing consent however can lead to a suspicion of bargaining.
Why is a no-fault divorce necessary?
Family lawyers are advised (by the judiciary) to keep allegations of unreasonable behaviour within a divorce petition as mild as possible to avoid creating unnecessary tensions. This has a potential problem though as it does make it easier for the receiving spouse (respondent) to defend a petition. This happened to Mrs Owens whose husband defended her petition. The case went all the way to the Court of Appeal and the outcome surprised practitioners (although the Judges were limited in what they could do at that point given the point of Appeal).
Avoiding the possibility of facing defended divorce proceedings, leads people to ensure that allegations are as strong and lurid as possible. This flies in the face of the best practice guidance.
Can people still refer to behaviour?
The change will not prevent a person relying on unreasonable behaviour. When a person has suffered completely abhorrent behaviour from their spouse, they should be entitled to list those examples to demonstrate to the court that they are entitled to a divorce. If the other person intends to defend the petition, they will need to demonstrate to the court that the behaviour happened, so the court can set them free from an unhappy marriage. A perpetrator will not want to let their victim leave if they can prevent it.
Will it make getting divorced easier?
It will make it a lot easier for those who need/want to divorce without dredging up any examples of unreasonable behaviour. Those friends may say it is too easy to end a marriage. Over my many years of experience I cannot recall anyone who has made contact with me on a whim.
Seven things you need to know about the new divorce law
Statement of Breakdown - There will no longer be a requirement to provide evidence of a ‘fact’ around behaviour or separation. This will be replaced with a requirement to provide a statement of irretrievable breakdown and no further evidence will be required. This statement can be provided solely or jointly.
Grounds for divorce - The new legislation will retain the need for ‘irretrievable breakdown’ as the sole ground for divorce.
Consent - There will no longer be a need to ‘consent’ to the divorce. The court will be satisfied with the statement of irretrievable breakdown as conclusive evidence that the marriage is over.
Length of divorce - There will still be the two-stage legal process analogous to the decree nisi and decree absolute stages, but couples will now need to wait a minimum of 6 months from making the application to final decree (20 weeks from application stage to first decree, 6 weeks from then to final decree). This provides a period for reflection and the opportunity to reconcile. Where divorce is inevitable, it will better enable couples to reach agreement on practical arrangements for the future such as for any children and resolution of their finances. Courts will retain the power to expedite the process where appropriate.
User friendly - The language of the new law will now be in plain English to be more user friendly. ‘Decree Nisi’ will be replaced with ‘Conditional Order’, ‘Decree Absolute’ will be replaced with ‘Final Order’ and ‘Petitioner’ will become ‘Applicant’.
Joint Application - There will now be an option of a ‘joint application’ for divorce alongside retaining the option for one party to initiate the process.
Civil Partnerships - The changes will also apply to the dissolution of Civil Partnerships.
Guidance has just been circulated by the Ministry of Justice and the key changes have been confirmed as –
For the first time spouses can apply jointly to the Court for a divorce, dissolution of their civil partnership or judicial separation.
It is possible to ask the Court to switch from a joint application to a sole application if your situation necessitates this; however you have to wait for the conditional order stage (Decree Nisi equivalent ) to be reached.
A new 20-week (minimum) delay period between the start of the divorce proceedings (when the court issues the application) and when the applicant(s) may apply for a conditional order (replacing the Decree Nisi) is being introduced. This new delay does not apply to nullity or judicial separation proceedings.
The ability to contest the divorce itself is being removed. On a sole divorce application, the respondent can dispute the application on limited bases, i.e. the basis of jurisdiction (i.e. whether the Court in England and/or Wales should have conduct of the proceedings); validity of the marriage or civil partnership; if they say the marriage has already been brought to an end elsewhere; fraud or procedural non-compliance.
A new digital divorce platform has been designed and will be launched on 6 April 2022.
One solicitor could apply, on paper, for the joint divorce application and act for both parties. However this joint representation would only be for the divorce, as a conflict of interest would arise for financial settlement advice.
No fault divorce will hopefully remove some areas of disagreement between married couples but issues relating to children and finances may still remain. I can assist you in providing a safe environment where difficult issues can be discussed and a middle ground found.