What is no fault divorce and how will it impact me?

DivorceFamily

23 Mar

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Written by Becky Turnock | Divorce | Family Law | 23rd March 2022

On 6th April 2022, the Divorce, Dissolution and Separation Act 2020 came into effect. This is more commonly known as no fault divorce.

Old Law

Divorce is not an unfamiliar concept. Most people will be aware that previous divorce law required you to show that there had been an irretrievable breakdown of the marriage and the person applying for the divorce did this by using one of five facts:

Desertion
Adultery
Behaviour so unreasonable that the petitioner cannot reasonably be expected to live with their spouse
2 years’ separation with consent
5 years’ separation

For those who did not wish to wait for at least two years, there needed to be an element of blame placed on their spouse. This could cause further unpleasantness between two people who perhaps simply no longer love each other and would be happy to divorce amicably.

For a long time, there has been demand for reform. Finally, on 6 April 2022, no fault divorce came into effect.

Current Law

There have been a number of changes.

Firstly, couples are now able to submit a joint application to the Court. Previously, only one spouse could submit the petition and the other became the respondent.

Furthermore, the power is now vested in the applicant (or applicants). Under the previous law, the Court needed to consider the petition and decide whether the marriage had broken down irretrievably. This meant that even if both parties agreed to proceed with the divorce, the Court could decide that based on the information in the petition, the marriage had not broken down irretrievably.

This changed under the new law.

Now, the application must include a statement to confirm the marriage has irretrievably broken down. The Court is obliged to consider this statement as ‘conclusive evidence’ and grant a divorce on this evidence.

Essentially, the parties now decide whether their marriage is over, rather than the Court. This is a huge shift in the law.

How long does a no fault divorce take?

There are also changes to terminology and timescales.

As it previously stood, the petitioner submitted their petition, and the respondent had 7 days to return their acknowledgement of service. The Decree Nisi (stage one) was usually granted around 6-10 weeks after this, depending on the Court.

The petitioner could then apply for the Decree Absolute (stage two) after a period of 6 weeks and 1 day had passed from the date of the Decree Nisi.

Under the new divorce law, the applicant (or applicants) must wait a period of 20 weeks from the date the application is issued before they will be required to confirm whether they wish to proceed with the divorce.

This 20-week period is considered to be a ‘cooling off’ period. This gives the parties time to reflect on whether they truly want a divorce and to consider whether they wish to reconcile.

If, after 20 weeks, the applicant does wish to proceed with a divorce, they must confirm their intention and the Court must then grant a Conditional Order (stage one). After a period of 6 weeks and one day from the date of the Conditional Order the application can be made for a Final Order (stage two).

The new law removes the ability to defend a divorce. A dispute can be made about the petition for a number of reasons, but this will not be available simply because the respondent does not agree that the marriage has irretrievably broken down. If the applicant decides the marriage has irretrievably broken down then, unfortunately, the marriage has irretrievably broken down.

If parties submit a joint application and during the process, one party decides they no longer wish to proceed with a divorce, the other spouse can choose to continue with a sole application. This can be achieved at either the Conditional Order or the Final Order stages.

In extenuating circumstances, the Court can reduce the 20-week period. However, this is only likely to apply in circumstances were waiting 20 weeks would be of an unreasonable detriment to one of the parties. An example of this is where a medical diagnosis requires the matter to be dealt with quicker than 20 weeks.

A positive step forward

This is a positive step in terms of reform. These reforms assist couples in divorcing more amicably by removing the need to ‘blame’ the other spouse.

Speak to a friendly family solicitor

If you wish to speak to one of our team about the new divorce reform and how the changes might affect you, please do not hesitate to contact us.

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