On 6th April 2022 No Fault Divorce Goes Live in England & Wales
6 April 2022 heralds the arrival of no fault divorce, for marriages and no fault dissolution for civil partnerships. This is a change in the divorce/dissolution procedure that has long been sought after and has been much awaited by practitioners in this field. Jacqueline Major sets out the key features of the new procedure and has also produced a Briefing Note which summarises the FAQs that the clients will be asking when the new procedure goes live.
Goodbye to Fault in divorce
At the present time we have a fault based system. What the popular press love to refer to as the “quickie” divorce was actually no such thing. The fault based system that everyone had to follow had a set procedure and goes through the same stages petition, application for Nisi, Nisi granted, six weeks and one day later Absolute can be applied for. The reason it was termed the “quickie” divorce was that some of the grounds for divorce such as desertion two years separation and five years separation gave a mandatory waiting period and the “quickie” divorce would have been either on unreasonable behaviour or adultery. The most used ground was unreasonable behaviour. This meant that at the outset when emotions were high due to the end of a relationship one party had to allege a string a factors of unreasonable behaviour against the other. It was not an amicable or constructive way to start a separation.
Finally we have no fault divorce which means that the need to have anything other than “the irretrievable breakdown of the relationship” has gone. There is one simple requirement which is the statement of irretrievable breakdown.
No defence to no fault divorce/dissolution
The other key change in this procedure is that there is no ability for one party to contest or defend a divorce or dissolution application. Apart from on very limited grounds such as:
- has the application been properly made in England & Wales as the right jurisdiction or
- as to the validity or subsistence of the marriage or civil partnership e.g was it a legally recognised marriage/civil partnership.
Many people when starting this process particularly with unreasonable behaviour were worried that the other party would defend the divorce. Defended divorces were actually rare. If a defended divorce proceeded it went to a trial and a Judge would have to make findings of fact about what unreasonable behaviour was alleged by one and whether the defence was made out. In reality defended divorces were few and far between not least because of the cost but also because even if the parties did not like to have to petition on the basis of a fault based ground, they were resigned to the ending of the marriage and sometimes unreasonable behaviour was the only option to petition on.
The new process
An application can be started by one party, or jointly. Once an application is issued by the court, there is a minimum period of 20 weeks until the first part of the divorce now called the Conditional Order. The reason for the 20 weeks wait is to have a period of “reflection” for both parties to consider for example, whether they truly want to permanently separate and what they can work out and agree practical arrangements in relation to financial provision and if applicable, the care arrangements for children.
These are difficult areas and often fraught with argument and acrimony. Now that the initial application for the divorce is a no fault neutral process, it is hoped that this will help parties when dealing with children and financial provision.
After the Conditional Order is made, the Final Order (which used to be Decree Absolute) can be applied for six weeks after the Conditional Order and the advice as it is at present is that it will be usual not to apply for the Final Order until the financial arrangements have been finalised and recorded in a Court Order (Consent Order if by agreement) or a Final Order if made by the Court at a Final Hearing. This is because the Conditional Order dissolves the marriage and can affect some aspects of finances such as the rights to spousal pension.
If you’re seeking legal advice relating to divorce and separation please call our highly experienced Family Lawyers on 0808 252 5231 to talk through your situation with us. Alternatively, you can request a call back or get in touch online.