From 6 April 2022 the long-awaited “no fault” divorce becomes law. This significant change is very much welcome and long over-due. The aim is that it will end the perception that one party to a divorce is entirely to blame for the breakdown of the marriage and to allow a more constructive approach to the separation between the parties.
The previous system used the ground that the marriage has irretrievably broken down and five grounds for divorce to demonstrate this. The five grounds for divorce were;
- Unreasonable behaviour
- Two years separation with consent
- Five years separation
No Fault Divorce - What Are the Key Changes?
Why the Change?
The vast majority of couples have not wanted to wait until they had been separated for two years or longer before they could divorce. The most commonly used grounds for divorce of unreasonable behaviour and adultery.
This has led to circumstances where, in the case of unreasonable behaviour, solicitors have drafted the divorce petition with anodyne behaviour particulars which are sent to the other party before being issued with the court so as to avoid the risk of the divorce being defended.
Where this has not happened, it can lead to one party feeling aggrieved with the contents of behaviour particulars they consider to be unreasonable or at worst the situation is inflamed to such an extent that it has a profound negative effect on the parties’ relationship with each other at the start of their separation acrimony is created before they have even addressed matters relating to children and/or financial remedies.
Under the new legislation there is no longer a need to use the five facts to show that the marriage has irretrievability broken down.
The need for the new legislation is therefore clear and it is the result of a number of years of campaigning for change from the Law Society and Resolution in particular.
For the first time, the application can be filed by either party or by both. Once the application has been issued by the court there will be a minimum of twenty weeks from the date of issue before the conditional order (see below) can be applied for. Once the conditional order has been received there is a period of six weeks and one day before the final order can be applied for, which is same as it is now.
Disputing the Application
There is no longer an ability for the respondent to defend the divorce. However, the divorce application can be disputed. There are only very limited grounds for this which are:
- There is an argument that the marriage is not valid, or it has already been legally ended
- One of the parties disputes the jurisdiction of England and Wales
There is also a change to the language which will be used. This will remove technical legal jargon to help make getting divorced be accessible to everyone and also so that is aligned with the language used in the dissolution of civil partnerships. The most notable changes to the language are that there will no longer be a petitioner – the person who prepares the divorce will be the applicant and the other person will be remain the respondent. If it is a joint application the parties will be applicant one and applicant two.
There will no longer be decree nisi as the interim stage in the divorce and decree absolute as the final stage. These will be replaced with conditional and final orders.
There is an emphasis of using email addresses for the parties as the key contact information for the service of the divorce application and the use of HMCTs’ online platform for processing the divorce – this should see an end to the paper applications and hopefully a far more efficient experience for those using the service.
The costs of the divorce are not insignificant, with the court fee for issuing being £593.00. It therefore appears that there ought to be some discussion between the parties on how the costs should be met and perhaps the best practice would be for the court fee to be shared equally between the applicant and the respondent.
There is an option to apply to the court for the judge to consider the issue of costs if no agreement can be reached. The party applying for costs will need to pay a further court fee and will need to set out the grounds and the sum which is sought.
The other party will then have fourteen days to respond and in most cases the court will consider the issue on paper, without the need for a hearing. This is not an insignificant amount of work and careful consideration would need to be given to any costs that would be incurred in undertaking this work when compared the costs which may be recovered.
If you and your ex both agree to divorce, or have already agreeably split, consider a same solicitor divorce. This service is unique to Simpson Millar and means that both parties simply use the same solicitor to deal with the legal proceedings. You will save money and can also prevent a lot of unnecessary tension and conflict. For more information, visit Separating Together.
If you would like to discuss getting a divorce advice, get in touch with our expert Family Team to find out more about how we can help you.
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