From 6 April 2022,
the new law introduced by the Divorce, Dissolution and Separation Act 2020 on
“no fault divorce” will take effect in England and Wales. This will be the most
significant change in divorce law since 1969 and one that is long overdue.
Under the current law, parties looking to separate must rely on one
or more of the five facts to prove the ground for divorce – that the
relationship has broken down irretrievably. The person making the divorce
petition must effectively “blame” the other party and if the other party
disagrees, they can contest the divorce or the facts relied upon. The current
law has been criticised for being outdated as it has the opportunity to
potential conflict, often further straining relationships during an already
difficult time.
In the past, it also required parties to rely on fault-based
reasons to get a divorce or forced parties to remain legally married to wait
for the relevant separation period. For example, in Owens v Owens [2018] UKSC 41, the wife lost
her Supreme Court case to divorce her husband which effectively forced her to
stay in the marriage unhappily and against her will, until she was finally able
to get a divorce without the husband’s consent through the 5-year separation
route.
The new divorce law
Under the new law, the parties still need to have been married for
at least 12 months and the irretrievable breakdown of the
relationship will remain the sole ground for divorce. However, the new law will remove the requirement to
establish facts to prove an irretrievable breakdown and will introduce a more
practical and neutral approach to separation – without either party attributing
fault or lengthy separation periods.
There will be an update to some key legal terminology in the
divorce process to modernise and simplify the terms for laypeople. The “divorce
petition” will now be known as the “divorce application” and the “petitioner”
will now be the “applicant”. The “decree nisi” will become a “conditional
order” and the decree absolute will become a “final order”.
The new law will introduce an option for parties to make a joint
application for divorce where both parties agree that the relationship has
irretrievably broken down. This will allow parties to have a swifter and more
amicable separation. However, applicants will still be able to submit a sole
application for divorce if the other party does not agree. The new law will
also remove the option for parties to contest a divorce. The aim is to allow
parties to save costs, time and stress.
The new law will also introduce a new “period of reflection” for
both parties – a minimum of 20 weeks from when the application for divorce is
made to when a conditional order can be made. This is meant to give parties an
opportunity to have some breathing room for discussions or possibly reconcile.
The new law will keep the current minimum 6-week period between the conditional
order and when the final order can be made. This provides a minimum 26-week
time period between commencement of the divorce proceedings to when the final
order will be made. During this time, parties will still need to make
arrangements regarding the division of their finances, agree on childcare or
contact plans, and interim payments.
The law in practice
While the new law has its merits, there are still uncertainties
about how the law and procedural rules will operate in practice. The new FDR
provides some guidance on this. FPR 6.6Aprovides that the applicant must take
steps to serve the divorce application before midnight on the day 28 days after
the date the application is issued. However, there is currently no requirement
that the service is actually effected during that period. There have been
concerns that this would allow the applicant to delay service (intentionally or
by accident), which would result in the respondent having very little notice of
the divorce before the elapse of the 20-week period. However, others have
thought that the new system would expressly prevent respondents from being able
to delay or evade service.
The acknowledgement of service must be filed by the respondent 14
days after the date of service of the application. The respondent cannot
contest the divorce as there are no facts to dispute, but can challenge it for
other reasons, such as invalidity of marriage or lack of jurisdiction. The
respondent wishing to dispute the application (FPR 7.1(3)) will also need to
file an answer 21 days after the date of the acknowledgement of service.
The expectation is that good practice will be that no or far less
costs orders will be sought, otherwise it may contradict the very benefit of
having a “no fault” divorce. The overall costs of obtaining a divorce should
also lower as divorces cannot be contested, which will also save parties court
proceedings costs. In a standard case, without any dispute about jurisdiction
or other procedures, an application for costs should be made using the Part 18
procedure. Additionally, the divorce issue fee appears to remain the same at
£593, and parties may agree to split the costs in a joint application. However,
if there is no agreement in advance, there should not be any costs orders.
Should you wait for the new law?
If you are ready to divorce now, it may be wise for you to continue
through the current system, particularly if you are close to agreeing a
financial settlement with the other party, as you would not want to wait for
the 20-week reflection period. However, the HMCTS will be replacing their
online system for divorce applications soon. If you have started an application
and would like to go ahead with it, this will need to be submitted through the
court service online portal by 4pm on 31 March 2022.
However, it may be cheaper and less stressful to wait for the no
fault divorce under certain circumstances. If you were planning to rely on, for
instance, either the 2 or 5-year separation fact because you did not want to
upset the other party; or if you were planning on using the unreasonable
behaviour fact but are worried the other party will contest the divorce; or you
were planning to rely on the adultery fact but fear the other party will
challenge the application and drag you to Court; or you are worried that the
other party will challenge your application on the basis that the divorce will
cause them “grave financial hardship”, it may be a good idea for you to wait
for the no fault divorce.
Many people are already holding back on getting a divorce, waiting
for the new law. However, it remains to be seen whether divorce centres will be
able to cope with large amounts of applications in addition to the already huge
system backlogs they are experiencing.
