What is no fault divorce and when will it begin?

Category: Divorce, Family

It has been announced that the Divorce, Dissolution and Separation Act 2020 will come into force on 6th April 2022. This is more commonly known as the no fault divorce.

Current process

Divorce is not an unfamiliar concept. Most people will be aware that you can apply for a divorce based on one of many reasons. The most common and familiar reasons are adultery, unreasonable behaviour and 2 years’ separation.

In fact, the current divorce laws require that there has been an irretrievable breakdown of the marriage and the person applying for the divorce can prove this using one of five facts.

(those being desertion, adultery, behaviour so unreasonable that the petitioner cannot reasonably be expected to live with their spouse any longer, 2 years’ separation with consent or 5 years’ separation without consent).

For those who do not wish to wait for at least two years, there must be an element of blame placed on their spouse. This can cause an element of unpleasantness amongst 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 will come into effect.

No fault divorce changes

There are a number of changes, however.

Firstly, couples will be able to submit a joint application to the Court. Currently, only one spouse may submit the petition and the other becomes the respondent.

Further, the power is now vested in the applicant (or applicants). Under the current laws, the Court must consider the petition and decide whether the marriage has broken down irretrievably. This means that even if both parties agree to proceed with the divorce, the Court could decide that based on the information in the petition, the marriage has not broken down irretrievably.

This is changing under the new laws.

From 6 April, 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 will a no fault divorce take?

However, there are also changes to terminology and timescales.

As it currently stands, the petitioner submits their petition, and the respondent then gets 7 days to return their acknowledgement of service. The Decree Nisi (stage one) is usually granted around 6-10 weeks after this, depending on the Court.

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

Under the new divorce law, the respondent will get 14 days to return the acknowledgement of service. After this, the applicant must wait a period of 20 weeks 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 intentions and the Court must then grant a Conditional Order (stage one). After a period of 6 weeks, the Conditional Order can be made a Final Order (stage two).

The new laws remove 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 an exciting development and is a positive step in terms of reforming old laws. It is anticipated that these reforms will assist couples in divorcing more amicably by removing the need to ‘blame’ the other spouse.

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.