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No Fault Divorce becomes a reality in England and Wales

27 April 2022

On 6 April 2022 the Divorce, Dissolution and Separation Act 2020 (“DDSA 2020”), introducing “no fault” divorce, came into force in England and Wales. The new procedure under the DDSA also applies to the dissolution of civil partnerships, which are now available to mixed-sex, as well as same-sex couples.

The new law: ending the “blame game”

This new legislation, which amends the Matrimonial Causes Act 1973, represents the most fundamental change to our divorce law for 50 years. Under the new divorce law, rather than relying on (often spurious or exaggerated) fault-based allegations concerning the conduct of one of the spouses to evidence the “irretrievable breakdown” of a marriage or civil partnership (which remains the only ground for divorce or dissolution of a civil partnership), all that is required to initiate the process is a signed statement from one or both of the spouses that their marriage has broken down irretrievably. No evidence or other information is required, or indeed allowed. This recognises the sad reality that a marriage is over if and when one of the spouses decides that it is at an end and that there is very little the other spouse can do to rekindle a dead marriage, unless the other spouse also wants to bring about a reconciliation.

Under the system in place before 6 April 2022, in order to obtain a divorce, one of the parties had to make allegations about the other’s behaviour (adultery, unreasonable behaviour, or desertion for at least two years), whether they wanted to or not, unless they were prepared to wait for a minimum period of two years’ separation (if the other spouse agreed to the divorce) before commencing divorce proceedings.

With this new modern divorce system comes new terminology - instead of a divorce petition, we have a divorce application, the Petitioner is now known as the Applicant, and the decree nisi and decree absolute of divorce are replaced by provisional and final divorce orders.

How long does a no fault divorce take?

Under the DDSA 2020, 20 weeks after the date of issue of the divorce application, one or both of the parties (if it is a joint application) can apply for a conditional order of divorce. Six weeks after the conditional order either party can apply for a final order of divorce. This time period is supposed to allow sufficient time for consideration and reflection about the marriage and to sort out the arrangements that need to be made for any children of the family and the financial aspects of the divorce. In reality, it often takes much longer than this timeframe to sort out the consequences of the breakdown of a marriage, especially if court proceedings relating to financial matters and/ or children issues are involved.

Can you defend an application for divorce?

In addition to ending the “blame game”, the new scheme for obtaining a divorce does away with the ability of a reluctant spouse to defend (and therefore delay) the divorce, (as well as the resolution of financial matters) by arguing that their marriage has not broken down irretrievably, as Mr Owens did in the well-known case of Owens v. Owens [2018.] This went all the way to the Supreme Court and left Mrs Tini Owens trapped in a loveless marriage until February 2020, by which time she and her estranged husband Hugh had lived apart continuously for five years. An application for divorce or dissolution of a civil partnership can now only be disputed in unusual circumstances, such as the court not having jurisdiction, or the marriage or civil partnership not being valid, and/ or having already been legally ended.

The 12 months rule

Somewhat incongruously, the rule that is not possible to commence divorce proceedings until a couple have been married for at least 12 months remains in place. The often stated, but doubtful, rationale for this rule is that it encourages parties to try to resolve their unhappy differences and not rush to start divorce proceedings after their first argument.

How divorce applications are now dealt with

Divorce applications can be made digitally or by paper. However, it is envisaged that most divorces will now be dealt with using the online divorce process and that service by email, rather than by post or in person, will become the default position. The expectation is that with the simplification of the process many, if not most, divorces will now be dealt with by the parties themselves, rather than using lawyers. Many have criticised the fact that the court fee payable for what is now effectively an administrative procedure remains unchanged (at £593). With the abolition of fault, it will be very unusual for costs orders to be made which means that the applicant (or applicant 1 in the case of joint application) will have to pay the court fee and sort out a contribution from the other spouse, if appropriate.

This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Maeve O’Higgins or write to us using the contact form below.

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