No Fault Divorce

The Divorce, Dissolution and Separation Act 2020 (no fault divorce) came into force on 6 April 2022.  This brought into effect the biggest change to divorce law in 50 years. 

Until that date, a couple who wanted to divorce either had to have lived apart for at least 2 years or, instead, rely on the other’s adultery or unreasonable behaviour.  Now, a couple can divorce without any need to rely on a period of separation or fault, although the marriage must still have broken down irretrievably and you still cannot divorce less than 12 months from the date of the marriage.

The government hopes the changes to the law will reduce hostility in divorce and mean that divorcing couples are more likely to work together to resolve other issues, such as those relating to their children or finances.

What are the main differences to the old law and procedure for divorce?

1. It will no longer be possible to stop your spouse from divorcing you.  Defended divorces will now become a thing of the past.  It will only be possible to dispute the divorce based on very narrow grounds, including jurisdiction or the validity of the marriage
2. It will now take at least 6 months to get a divorce from when the application is first made to the court until the divorce is finalised.  The idea is that after issuing the application there will be a ‘period of reflection’.  If during that period the divorce is still going to go ahead, the arrangements for any children and for the finances can be considered.  They may of course not necessarily be concluded within this period
3. It won’t be possible to ask that your spouse contribute towards the costs involved in the divorce proceedings or the court fee as a matter of course.  Instead, a stand-alone application would have to be made for costs in form D11.  It will still be possible to come to a private agreement regarding the costs of the divorce, however,
4. If both spouses agree, it is now possible to jointly apply for a divorce.  This will require a high level of co-operation throughout the process.  There are provisions for what can happen if during the divorce, co-operation is withdrawn by either spouse.

How do you start the divorce process?

To start the divorce process, you will need your marriage certificate.  Don’t worry if you haven’t got it because it is usually possible to obtain an acceptable copy quite easily. 

Once you have this, an application is made to the court.  The divorce papers are then served on your husband or wife and after they respond, you can take the next step in the divorce process which is to ask for a ‘Conditional Order’.  This was previously called a ‘Decree Nisi’.  This is an order from the court confirming that you are entitled to a divorce. 

Six weeks after the Conditional Order you can apply for the ‘Final Order,’ previously called the ‘Decree Absolute’.  This is an order formally ending the marriage.  You cannot apply for a Final Order however until 20 weeks have passed from the date that your divorce application is issued by the Court. 

This is a description of what happens if you want to get divorced in England.  The same process applies whether you are married or in a civil partnership. 

Why do I need a solicitor for my divorce?

It is very important to have good quality legal advice throughout the divorce process.  Sometimes it can be easy to take a step in the proceedings, but it might not be a sensible thing to do at that time.  We always look at the divorce alongside all the other issues that arise when your marriage has broken down.  There may well be a good reason to try to speed matters up, but equally there may be very good reasons to slow things down.

It is crucial to understand that the divorce does not conclude the financial claims that arise between you and your husband or wife upon divorce.  Those claims remain live until there is a Court order that determines them.

The changes to divorce law make it easier to get divorced.  The hope is that the changes will lead to better divorces, although it will take some time before the success of the new law can be assessed. 

It can be very worrying if your husband or wife has started the divorce process without first discussing it with you.   If this has happened to you, and you have received divorce papers, please don’t worry. 

You still have a wide range of options.  Some of them have time limits though so it is important to get legal advice straightaway if this happens to you.