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This change represents the biggest overhaul of matrimonial law in England and Wales in 50 years.
To apply for a divorce, under the current law, one party is required to either place blame upon the other for the breakdown of the marriage or wait at least two years following separation. From 6 April the law is changing to a system of “no fault” divorce where all that the court will require is a statement from one or both parties that the marriage has irretrievably broken down.
The timescales will be changing slightly in comparison with the current procedure and a 20-week period of reflection is being introduced. Once 20 weeks have elapsed following issue of the divorce application, the Applicant will be able to confirm that they want the divorce to continue and the court can grant a conditional order. The parties must wait at least six weeks after the conditional order has been granted, before applying for a final order of divorce. There will be safeguards to ensure that, before the final order is granted, the financial position has been considered.
The court will not be able to go behind the statement of irretrievable breakdown within the application and question whether the parties are entitled to divorce, except for limited procedural reasons, such as lack of jurisdiction or fraud. This is because it will no longer be possible for the respondent spouse to defend the divorce either by arguing that the facts relied on within the application did not happen or on the basis that the marriage has not irretrievably broken down - you may remember the case of Owens v Owens  UKSC 41 which made headlines when Mr Owens challenged divorce proceedings initiated by his wife, by arguing that his behaviour was not unreasonable enough. Mr Owens succeeded, within the parameters of the law at the time, in defending the divorce and the couple were forced to remain married until such time as Mrs Owens could proceed on the basis of five years’ separation (which would not need Mr Owens’ consent).
Defended divorces as seen in Owens are incredibly rare. The case did however re-ignite the conversation, which had been ongoing for several years, surrounding the need for changes to divorce law in England and Wales. Clearly relationships end for a variety of reasons and a law that requires one party to the relationship to blame the other, even where the parties agree that the decision to separate was a mutual one, is outdated.
TLT’s Family Team are all members of Resolution, an organisation focussed on taking a non-confrontational approach to family matters and who joined the campaign for reform of divorce law to end the blame game between separating couples.
Under the new law, couples will have the chance to start their journey through separation on the right foot, without the need to blame each other for the relationship ending. At TLT we are supportive of the changes to the law and are hopeful that removing the need for either party to blame the other will encourage a constructive approach throughout separation, particularly when discussing financial matters or the arrangements for the children. By reducing conflict on divorce, separating couples can help to limit the negative impact of their separation on children of the family (including adult children).
If you have any queries about no fault divorce, or separation and divorce more generally, TLT’s Family Team would be happy to assist. In the meantime, we have outlined some of the changes between the current law and the law from 6 April 2022 onwards in the below table.
There is one ground for divorce: that your marriage has irretrievably broken down. This is proved with reference to one of five facts:
The divorce will be based on a statement that the marriage has irretrievably broken down. There will no longer be a requirement to prove this with reference to one of five facts. Rather, the court will take the statement at face value.
The application for divorce is always made by one party, known as the “Petitioner”. The other party is the “Respondent”.
The parties will be able to make a joint application, where the decision to divorce is mutual.
Alternatively, either party can make a sole application. In these cases, the person applying for the divorce will be known as the “Applicant”. The other party will still be known as the “Respondent”.
It is possible for the Respondent to Defend the divorce by disputing that the marriage has irretrievably broken down. This can lead to litigation where the family courts will hear evidence from both parties.
It will no longer be possible for the Respondent to defend the divorce by disputing that the marriage has irretrievably broken down.
It will still be possible to challenge the divorce for procedural reasons, such as jurisdiction and fraud.
Legal jargon is used, such as ‘Decree Nisi’ and ‘Decree Absolute’.
This language will be changed to be more accessible and in plain English. For example, Decree Nisi will be replaced with Conditional Order, and Decree Absolute will be replaced with Final Order.
There is no requirement to wait between the Acknowledgement of Service being returned and applying for Decree Nisi. The application for Decree Nisi will often be made upon receipt of the completed Acknowledgment of service.
There will be a ‘period of reflection’ (minimum of 20 weeks) which will give the parties the opportunity to reflect and work through their differences before proceeding with a divorce. In practice, this means that 20 weeks must elapse from the filing of the divorce application at court before the parties can apply for a Conditional Order.
Within the petition, the Petitioner can ask the Court to order that the Respondent should pay some or all of the costs of the divorce.
There will no longer be a question in the application asking whether the applicant wishes to apply for costs. Instead any application for the costs of an undisputed (standard) divorce or dissolution case will need to be made separately.
28 March 2022