No Fault Divorce – A New Era?
As some of you will be aware, from 6th April 2022 it will be possible to start divorce proceedings without having to show adultery, unreasonable behaviour or 2 or more years’ separation, with or without the other spouse’s consent. The purpose is to remove some of the acrimony from divorce proceedings. Some of the language used in the divorce process has changed and there are some important changes to the court procedures. As can be seen below, there remain some traps for unwary applicants and respondents which could cause delays unless the process is managed properly. At Temple Heelis we provide a bespoke service which helps to manage the process and take the pressure off you to ensure that matters are resolved as quickly as possible.
It will not be possible to start divorce proceedings under the current rules after 4 pm on 31st March 2022, and any applications received by the court after this will be rejected. The on-line divorce portal will be closed from that date so that it can be updated with the new procedure. If you have an urgent application, this must be received by 4pm on 5th April 2022 to a dedicated email address.
Divorce services will be available 6th April. Under the new law:
- There will be no requirement to show that the respondent has committed adultery, unreasonable behaviour, or show periods of separation of more than 2 years to start divorce proceedings, and you will not need the other spouse’s agreement – the applicant simply self-certifies that the marriage has ‘irretrievably broken down’;
- It will no longer be possible to defend the divorce – objections can be made in very limited circumstances;
- Couples will be able to make joint applications for divorce for the first time;
- The divorce process will take a minimum of 26 weeks, made up of a minimum of 20 weeks before the conditional order (previously ‘Decree Nisi’) can be applied for and a further 6 weeks before a final order (previously ‘Decree Absolute’) can be applied for – this means that the earliest date on which it will be possible to get a final order of divorce will be 5th October 2022;
- The legal language will be updated. The person applying for the divorce will be called the ‘Applicant’ whilst the Decree Nisi will now be referred to as a ‘Conditional Order’ and the Decree Absolute becomes the ‘Final Order’ – the intention being to make the process simpler to understand.
From 10 am on 6th April, applications for divorce can be made either jointly or individually. Individual applications, called ‘Sole Applications’ can be made online or by sending the application form to the court. The fee of £593 is payable unless you qualify for ‘Help with Fees’.
The respondent spouse can only dispute the application because-
- they dispute the jurisdiction of the court in England and Wales to conduct the proceedings. For example, where neither party lives in or has any other connection with England and Wales;
- they dispute the validity of the marriage or civil partnership. For example, if the parties have not entered into a legally valid marriage;
- the marriage or civil partnership has already been legally ended. For example, if the marriage has already been ended in proceedings outside of England and Wales. It will also be possible to challenge proceedings for reasons such as fraud and procedural compliance.
The application will need to be served on the respondent. This will normally be done by the court. If it is served by email, postal notification will also be sent to the respondent. The applicant must then comply with certain steps which are contained within the rules within 28 days of the date the application is sent to the respondent. If service is not effective for some reason, there are rules about what further steps can be taken to prove the respondent has received the application. Similarly, if the applicant has an email address, but no postal address, an application will need to be made asking for alternative service. There are different rules if the respondent lives outside the UK.
In a joint application, the parties will be referred to as Applicant 1 and Applicant 2. The process is a little bit simpler, and it is possible for one solicitor to manage the process for the parties, which may reduce the costs. However, the parties will still need separate solicitors to advise on the financial claims arising from the divorce.
For applicants who have started a joint application but find themselves in a situation where they are unable to continue with it, perhaps because of a deterioration of the relationship with the other party, or where the other party is not taking the necessary action to progress the application, it is possible to ‘switch’ the application from joint to sole. This can only happen at conditional and final order application stage.
Whilst applicants in person can send in paper applications to the court, solicitors are required to use the online process, which most people currently find to be much quicker in any event.
It remains the case that financial claims arising from the divorce will be dealt with separately and will not be considered under the new divorce procedure. The claims are not dismissed in the granting of a Decree Absolute or Final Order of Divorce. These claims should be considered at an early stage and, in most cases, resolved before the final order of divorce is applied for.
It is important that both parties take advice on whether the final order should be stopped in case this affects the claims that can be brought. It is also important that, having divorced, if you are considering remarrying the claims arising from the divorce are formally dismissed by the court in a Financial Remedy Order before remarriage, as this will debar you from bringing such claims in the future. This is particularly important in cases where there are children, a jointly owned property or pensions.
The existing ways to apply for a financial order remain unchanged for solicitors. Solicitors are able to file an application for a financial order (whether by consent or contested) using the digital service. Use of the digital service for consent applications is mandatory for solicitors. For unrepresented applicants, (known as litigants in person), applications will need to be made by filing a paper application (Form A or Form A1) and paying an additional fee. These can be applied for at any time during or after the divorce process, as long as the other party is still alive.
Whether the new process is fairer or will speed matters up and make divorces less acrimonious is yet to be seen. There is likely to be a big increase in new cases in the days following 6th April 2022 and this could cause delays and IT issues as the new process beds in.
If you require any specific advice or help with divorce or separation, please call Andrew Hill who is the Head of our Family Team. He will be able to give you the benefit of his 30 years’ experience in family law.