Many people have heard of the “No fault divorce” rules which have been talked about by government for many years. They have now finally been introduced and our family law expert Chris Pace gives an overview of the new law:
To apply for a divorce, you must have been married for at least a year. Additionally, it doesn’t matter where in the world you were married, as you can only apply for a divorce in England and Wales if either you or your spouse meet certain residence conditions or are domiciled here.
Previously, to start a divorce, you (or your solicitor) had to file a petition (now known as an application) at Court. The petition was a form that gives the Court information about you and your spouse, it also told the Court that you feel your marriage had irretrievably broken down. You then had to briefly set out evidence that your marriage had broken down by supplying certain details in one of the following five categories:
• that your spouse had committed adultery;
• that your spouse had behaved unreasonably;
• that your spouse had deserted you for two years;
• that you had lived apart for two years and your spouse consented to the divorce; or
• that you had lived apart for five years.
As of 6th April 2022, the law procedure in England and Wales drastically changed following the introduction of the Divorce, Dissolution and Separation Act 2020. The unfortunate facts of many marriages, but specifically in the case of Owens v Owens [2018] reinforced the need for a change in the law, which is said to have been archaic in its nature given that it was over 30 years old.
To summarise, the new the new law removes the requirement for the Petitioner (now known as the Applicant) to blame their spouse for the breakdown of the marriage. Additionally, if there was no blame to be apportioned to the spouse, the Petitioner would then need to wait at least two years to initiate divorce proceedings by way of petitioning on the basis of two years separation with consent. However, in many cases, the spouses would refuse to provide consent to the divorce for a whole variety of reasons, meaning many people were left in limbo as to how they can proceed. The new legislations removes this uncertainty, provided the Applicant believes the marriage has irretrievable broken down.
As previously mentioned, the new law removes any reference to blame, conduct or fault within the application for divorce, meaning that that S.1(2) of the Matrimonial Cause Act 1973 is abolished. In place of this, the Applicant must simply prove that the marriage has irretrievably broken down and a signed statement of truth will be evidence of this.
In line with the new changes, which highlights the importance of trying to eliminate unnecessary animosity be-tween the parties in circumstances whereby emotions are already often running high, the new law removes the ability for the spouse to contest/defend the divorce. This being unless there are issues raised in respect of jurisdiction, procedural compliance, fraud or the validity of the marriage in the first place.
Under previous law, once the Petitioner had proved the marriage had irretrievably broken down, relied upon one of the five facts and the spouse had responded by way of an Acknowledgement of Service, the Petitioner was given permission by the Court to apply for Decree Nisi. Once Decree Nisi was pronounced, the Petitioner would have to wait a further six weeks to apply for Decree Absolute.
Under the new law, a minimum period of 20 weeks between the application stage and Conditional Order (previously Decree Nisi) stage has been introduced. This is an attempt to counter the arguments that many have used to suggest that no fault divorce would dilute marriage and make it easier for people to flaunt the rules. The 20 week period allows the parties to reflect upon their decision and to ensure that they have not entered into the decision lightly. The period between the Conditional Order being made and the Applicant being allowed to apply for a Final Order (previously Decree Absolute) remains six weeks, meaning there is a minimum timeframe of 26 weeks from the date of application until divorce.
It is worth noting that we would not recommend applying for a Final Order until discussion have been held regarding the matrimonial finances.
Finally, please note that the Court Fee for applying for a divorce remains at £593.00, unless the Applicant is entitled to a fee remission.
If you have any questions regarding this, or would like more information please contact us.
