The Divorce, Dissolution and Separation Act 2020, which passed into law on 25 June 2020, will introduce "no fault" divorce in England and Wales for the first time. The change comes into effect on 6 April 2022. This article looks at what it will mean for couples who divorce after these changes come into effect.
Current law
Under the current law, there is no way for couples to start the divorce proceedings without apportioning blame to one spouse. The only way to obtain a divorce without apportioning blame is to wait for at least two years (if both parties consent to the divorce) or five years (if one party does not consent to the divorce). Otherwise, for an immediate divorce, parties have to rely on a blame-based facts to prove that their marriage has irretrievably broken down, either:
- One spouse has committed adultery and the other finds it intolerable to live with them; or
- One spouse has behaved in such a way that the other cannot reasonably be expected to continue to live with them.
(The other blame-based fact is that one spouse has deserted the other for a period of at least two years. That however, does not facilitate an immediate divorce.)
The current system also allows spouses to easily defend the divorce or cross-petition which leads to court hearings, significant delays and significant costs.
The new law: what are the changes?
Applying for divorce
In the future, spouses will be able to apply for a "Divorce Order". This will dissolve the marriage on the ground that the marriage has broken down irretrievably. Crucially, neither spouse will have to demonstrate the irretrievable breakdown by relying on one of the old blame-based facts. Under the new system, the parties need only send a statement to the court which will be treated as conclusive evidence of the irretrievable breakdown. It will still be possible for one spouse to apply for a divorce, however, the new legislation will permit couples to jointly apply to the court for a divorce and separate as amicably as possible, and without apportioning blame.
The new procedure
The new procedure has been simplified and the previous archaic language has been modernised, making it easier to understand the process from the outset. The process will still involve the two stages of Decree Nisi and Decree Absolute. However "Decree Nisi" will become a "Conditional Order" of divorce and "Decree Absolute" will become a "Final Order" of divorce.
Further, the new legislation also removes the ability for one spouse to contest the divorce.
In line with recent guidance, from 13 September 2021 all new divorce applications must be submitted online using MyHMCTS (save for applications for civil partnership dissolution, judicial separation and nullity which can still follow the paper process at Bury St. Edmunds Regional Divorce Centre).
Timescales
A new minimum time period of 20 weeks will be introduced. This means that 20 weeks must elapse from when the divorce application is filed with the court, before the parties can apply for a Conditional Order. The purpose of this window is to allow a period of "meaningful reflection". If, after the applying spouse has reflected and still wishes to progress the divorce, they must confirm this to the Court when they apply for a Conditional Order. If the parties have applied jointly for the divorce, both must confirm that they wish to apply for a Conditional Order.
The Conditional Order will not be made final until at least six weeks have passed. Therefore, in theory, the whole process could take 26 weeks. However, the parties will be advised to delay an application to make the Conditional Order into a Final Order, until they have resolved the financial aspects of their divorce.
When do the changes apply?
It is hoped that the new no fault law will be available to use from 6 April 2022, a delay of around 6 months from the original date of autumn 2021. It is understood that the Ministry of Justice is still working to update the procedural rules, forms and court IT systems that will facilitate and support the new law. Hopefully this project will not overrun and result in further delay, although that must be a possibility.
New court fee
Although perhaps not directly linked to the roll out of no fault divorce or the now mandatory online system, the Government also increased several court fees with effect from 30 September 2021. The court fee for submitting a petition rose from £550 to £592.
Nicola Harries
Victoria Batstone