In less than three weeks, on 6 April 2022, the new divorce law referred to as “no fault divorce”, will finally come into effect in England and Wales. This is hailed as a significant and welcome change amongst the majority of family lawyers. It will enable divorcing couples to instigate the divorce procedure without having to rely on a fault-based petition (adultery or unreasonable behaviour) or having to wait for a period of either two or five years separation. We have prepared a short Q&A document on some of the key changes to the new regime.
Question 1: Will the existing divorce procedure remain in place for those applications issued before 6 April 2022?
Answer: Yes the existing legislation will continue to apply to divorce petitions issued (digitally and on paper) up until 4pm on 31 March 2022 – any applications under the old procedure must be received by the court by this date and time. After this, only urgent applications under the existing legislation will be processed by the court from 4pm on 31 March 2022 until 4pm on 5 April 2022. Despite these timescales, there is no guarantee that applications sent ahead of these dates will be issued. Thereafter, all applications for divorce will fall under the new divorce law and procedure.
Question 2: Who is able to apply for divorce under the new law?
Answer: Either party will be able to apply for a divorce/dissolution of civil partnership. Parties to a marriage or civil partnership will still need to have been married or in a civil partnership for at least one before they are able to apply for a divorce/dissolution.
Question 3: Can we apply for a divorce together?
Answer: Either party to the marriage will be able to apply individually for a divorce in which case they will be referred to as ‘Applicant’ and ‘Respondent’. Parties may alternatively choose to apply jointly in which case they will be referred to as ‘Applicant 1’ and ‘Applicant 2’. The new law removes references to the use of ‘Petitioner/Respondent’ as the respective parties to the proceedings.
Question 4: What do parties need to show under the new procedure for a divorce/ dissolution order to be granted?
Answer: The legal basis for a divorce has not fundamentally changed – the party or parties will need to provide a statement to the court that the marriage has irretrievably broken down, that is to say, it cannot be saved. The significant change to the law is that there will no longer be a requirement to rely on either a period of separation or a fault-based petition (adultery or unreasonable behaviour) to demonstrate how the marriage has irretrievably broken down, hence the new law having become known as ‘no fault divorce’.
The requirement to rely on a fault-based petition in the past (in circumstances in which there has been no period of separation) has very often caused significant distress to parties who are already coming to terms with the end of a significant relationship and the emotional and psychological upheaval that this may involve not to mention the practical implications this change may have on their lives. For many individuals, fault-based petitions have unnecessarily inflamed matters and entrenched the parties’ positions, setting a difficult tone for the negotiations and processes that have to follow, when the parties already accept the relationship is over.
Question 5: When may a joint application for divorce /dissolution of civil partnership not be appropriate?
Answer: In circumstances of domestic abuse, it may not be appropriate for parties to apply jointly for divorce. There will however remain the option to make a sole application for divorce which will likely be the appropriate route in such circumstances.
Question 6: How is the application for a divorce made?
Answer: Sole and joint applications for divorce may be made online through the My HMCTS digital portal or on paper on the new court form. If one of the parties has instructed a solicitor, then the digital process must be used by the solicitor.
Question 7: What happens if I initially apply jointly for divorce but the other party stops engaging in the process?
Answer: In this instance, a joint applicant can ‘switch’ the application from joint to sole. This cannot happen before the procedure has reached the conditional or final order stage
Question 8: What does ‘conditional’ and ‘final’ order mean under the new law?
Answer: The conditional order will be the order made by the court, which will grant the parties a conditional divorce, on the basis that the marriage has irretrievably broken down. This was previously referred to as ‘decree nisi’. The final order of divorce may only be applied for, six weeks and one day after the conditional order is made. Once the final order is made, the parties are no longer legally married. This was previously known as ‘decree absolute’. The new law removes the old terminology of ‘decree nisi’ and ‘decree absolute’.
Question 9: Will the new divorce procedure be faster?
Answer: The new procedure does not allow an Applicant to apply for a conditional order of divorce or dissolution until a period of 20 weeks has passed since the application was issued. There will be a period of 6 weeks and 1 day from the date of the conditional order before the final order can be applied for. It will therefore still take a minimum period of at least 6.5 months for a divorce to proceed. The processing timescales will therefore not be significantly different from the existing procedure.
Question 10: What happens if one party does not agree to the divorce?
Answer: There will be limited circumstances in which a divorce may be disputed by the other party, it being acknowledged that by applying to court for a divorce, then that in itself is a significant step in considering the marriage to have irretrievably broken down. The limited circumstances will relate to arguments disputing the jurisdiction, validity/subsistence of marriage and where challenges as to fraud/procedural non-compliance are made.
If you would like further information or to discuss your family matter, please contact the Family Department at ITN Solicitors on 020 3909 8100.