No Fault Divorce: An introduction

On 6 April 2022 the Divorce, Dissolution and Separation Act 2020 comes into force, and we embark upon a new era of "no fault" divorce. Below we consider the key features of the reform.

What was the old law, and why is the new law a good thing?

Under the current law, you have to satisfy a judge that there has been ‘irretrievable breakdown’ of the marriage.  There are five ways in which you can prove this. You can rely upon: (i) unreasonable behaviour, (ii) the respondent’s adultery, (iii) desertion, (iv) two years separation combined with the consent of the respondent, or (v) five years separation. The most common ground relied upon is unreasonable behaviour. This means that the petitioner has to write a list of things they find unacceptable about their spouse in official court documents.  A lot of time and energy can be spent trying to make sure that these accusations are serious enough to satisfy the court that your marriage should be ended, but are not unnecessarily dramatic or upsetting. This process is usually unpleasant for both parties, one of whom is being accused, and the other of whom has to trawl back through memories of the worst times in their marriage. All this is about to go. The law remains based on the ‘irretrievable breakdown’ of the marriage, but all you will be required to do to establish it is sign a statement to the effect that you believe the marriage has irretrievably broken down. In effect, the court is going to start taking your word for it. This is a positive change that will make the process less time consuming and emotional for everyone, and will hopefully allow couples to focus on what really matters at the end of a marriage – not who is to blame, but how are you both going to move on constructively.

How is the legal process changing?

The legal process itself will follow a fairly similar three stage process to the procedure in place under the current law. However, these are the most important changes:-

1. Parties will be able to divorce without one blaming the other for the end of the relationship. Instead the person applicant will simply state that the marriage has broken down irretrievably.
2. The terminology is changing. The person applying (currently called a ‘petitioner’) will instead be called the ‘applicant’. The old-fashioned latin derived terms ‘decree nisi’ and ‘decree absolute’ will be replaced with ‘conditional order’ (an order stating that you are entitled to divorce but you must wait a certain period before the divorce can be finalised) and ‘final order’ (an order ending the marriage).
3. The minimum time it will take to divorce is being increased. There has traditionally been an enforced six-week gap between the middle stage (decree nisi) and the final stage (decree absolute) and this will be staying, accompanied by a new required gap of 20 weeks between issuing the application and reaching the middle stage. The hope is that this will afford parties more time to revisit their decision to divorce, if that’s what’s appropriate for their family. In practice, this may make very little difference given the existing delay in they system as a result of backlogged courts.
4. The ability to defend a divorce will be substantially curtailed.  The new system will allow either party to unilaterally determine the relationship is over by simply saying so (even if the other party isn’t happy about it and even if outside observers wouldn’t agree). Because of this, it will no longer be possible to defend a divorce on the basis that, in the opinion of the respondent, the relationship isn’t really over. A defence will be available only where there is a legal issue that hasn’t been properly accounted for, e.g. the courts of England & Wales don’t have jurisdiction, or in cases where there was never a legal marriage formed in the first place. This reflects current practice, where only a tiny handful of divorces are defended even where the parties are at odds about the end of the relationship.
5. Parties can coordinate with each other and apply together.  Under the current system, even if the parties are both in agreement that they should divorce, one person has to kick-off quite a one-sided process. Under the new law, if you’re separating on relatively civil terms, you can consider making a joint application. The hope is that this will help to avoid one party feeling like the victim.

How do I initiate a divorce from now on?

Both sole and joint applications should normally be made via the online divorce portal (the new version of which goes live on 6 April 2022) in most circumstances. In some scenarios however, paper forms may still need to be used.

You should seek legal advice so you can ensure the correct procedural steps are being followed.  Indeed, it is preferable to instruct solicitors to issue/lodge any application for you (not just to ensure it is done correctly, but also to advise you on any other matters that might need considering beforehand - e.g. financial relief and custody arrangements).

One word of warning if you are particularly keen to get your divorce started – applications made under the current law should be made before 31 March 2022. In order to clear their backlog and move cleanly over to the new system when it comes into play on 6 April, the courts are creating a week’s hiatus between the two systems. However, genuinely urgent applications (usually a ‘jurisdiction race’ where it is important for a party to petition in this country in order to ensure fair treatment) can still be made in the week 1-5 April, during which the current law will still apply.

What about if I’m in a civil partnership?

The new changes will also apply to civil partnerships, and will apply to both opposite sex and same sex relationships. Whichever of these situations you may be in, the new approach will be relevant.

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