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8th February 2022

Anna Roiser discusses no-fault divorce and key questions

Anna Roiser discusses no-fault divorce and key questions
Anna Roiser
Anna Roiser
Senior Knowledge Lawyer

On 6 April 2022 the Divorce, Dissolution and Separation Act, passed by Parliament in June 2020, will come into force, making the most dramatic changes to divorce law in England and Wales in fifty years. We address some common questions about the new law and the implications of the change.

What does no-fault divorce mean? 

It means that when a marriage has broken down neither spouse will be obliged to blame the other for the breakdown of the marriage in order to obtain a divorce.

Under the current law, unless the parties have been separated for at least two years, then in order to obtain a divorce one spouse must allege that the other has either committed adultery or behaved unreasonably.

Under the new law, all that will be needed is for one or both parties to make a statement that the marriage has broken down irretrievably. Assuming all procedural requirements are met, the court must then grant a divorce.

Many family lawyers campaigned for this change for many years, arguing that the requirement for one spouse to blame the other for the breakdown of the marriage exacerbated acrimony.

Practitioners have also called for change because under the current law, if one spouse wants a divorce but the other does not, and unreasonable behaviour or adultery cannot be established, a divorce can only be granted after five years of separation (as in the 2018 case of Owens v Owens [2018] UKSC 41) – a situation many considered most unsatisfactory.

Will it be possible to apply for a divorce jointly?

Yes. This is a significant change which has again been welcomed by family lawyers, as it will avoid one spouse having to start divorce proceedings against the other in circumstances where both accept that a divorce is inevitable.

However, it will still be possible for one spouse to make an application on their own, which they may want to do if the other is not co-operating, or in situations of abuse.  It will also be possible for an application which is started as a joint application to be progressed by one spouse alone, for example is the other spouse stops co-operating.

Whether a divorce has been obtained on a joint or sole application will make no difference to its legal status, nor will it be relevant in proceedings relating to financial arrangements.

Will it be possible to oppose an application for divorce?

A spouse will not be able to oppose a divorce on the basis that they do not consider that the marriage has irretrievably broken down.

The only bases for opposing an application for divorce will be if (a) it is argued that there was never a valid marriage or that the spouses are already divorced; (b) the other party has applied for the marriage to be annulled or seeks a judicial separation order; or (c) it is argued that there is not a sufficient connection with England and Wales for the courts here to conduct the divorce proceedings. It will also be possible to argue that even if there is a sufficient connection, the courts of another state would be better placed to consider the divorce and related financial applications.

How long will the divorce process take?

The new law introduces a minimum period of 26 weeks between the court issuing the application, and the application for the final divorce order. This delay was introduced by the government to ensure that spouses have plenty of time to reflect on their decision to divorce. It will be possible to apply to the court to shorten the period, but this is only likely to be permitted in exceptional cases.

In practice, it is often sensible not to apply for the order finalising the divorce until the financial consequences of the separation have been agreed and set out in a court order, as otherwise there is a risk that valuable rights (e.g. under pension plans) may be lost. The process of agreeing and finalising a financial settlement often takes longer than 26 weeks in any event.

Will the divorce be able to proceed online?

Yes. This is already possible under the existing law. However, it will become more straightforward under the new law, as new rules will allow the application for divorce to be formally served on the other party by email, though a paper notice must also be sent by post. (This will only be relevant where it is not a joint application).

Will it still be possible to raise concerns about the behaviour of the other party in proceedings concerning financial arrangements or arrangements for the children?

Yes. Be aware however that allegations about behaviour are very rarely considered relevant in cases relating to the financial provision to be made following divorce. In proceedings concerning arrangements for children, allegations about the parents’ behaviour will only be considered to the extent that the judge needs to determine them in order to assess the best arrangements for the children.

What if I have a divorce petition already issued under the current law?

Any application for divorce that has been issued by the court on or before 5 April 2022 will continue under the current law. Anyone who has not yet issued an application but wishes to proceed under the existing law should submit their application no later than a couple of weeks before 5 April, to ensure the court has time to process it before the law changes. From 6 April it will only be possible to apply for divorce under the new law.

Does the new law also cover civil partnerships?

Yes, equivalent changes have been made to the legislation regulating civil partnerships.

If you have any questions about divorce please contact a member of our family team.