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No-Fault Divorce - What do we need to know?
Throughout March and April 2022 you will most likely have heard or seen in the the news, the revolutionary change to the Law; the introduction of no-fault divorce, after many, many years of lobbying.
Prior to the Divorce, Dissolution and Separation Act 2020, the Matrimonial Causes Act 1973 governed divorce. The ground for divorce has always been “irretrievable breakdown”, but historically this was proved by reference to one of five facts – adultery, unreasonable behaviour, 2 years’ separation with consent of both parties, desertion and 5 years separation.
The big seismic shift has been from a place of “finger pointing” or the need for there to be a period of time to pass before getting divorced, to a “no fault, limited delay” approach, in an effort to change the culture of blame shifting and mud-slinging.
However, what is the real-life impact of the changes? Let us have a look at then, and now:-
- One person to file a petition based on one of the 5 facts above, and the Petitioner can claim costs from the Respondent.
- Petitioner sends draft to Respondent and allows 7 days for comment in line with the Family Law Protocol (if represented)
- One person to be Respondent and file a response to the Petition. This will either be agreeing to proceed, or contesting the Proceedings
- Petitioner applies for Decree Nisi as soon as Acknowledgement of Service is received.
- Minimum period of 6 weeks and one day before Nisi can be made Absolute.
- Absolute sometimes delayed until resolution of finances, subject to individual circumstances and advice received.
- Either one party or both jointly can make an application for divorce, citing just that the marriage has irretrievably broken down, with no factual reference to why.
- Neither party may seek costs from the other
- If a sole application, once the application is issued the Respondent must be served within 28 days of issue.
- Upon service, the Respondent files an acknowledgement of service. The Application can only be contested if there are issues as to the validity of the marriage or otherwise, issues relating to jurisdiction
- The application for a “Conditional Order” (previously Decree Nisi) cannot be made until 20 weeks after issue (4-5 months)
- After a further 6 weeks, the Applicant should apply for the Final Order (previously Decree Absolute) and should not delay this if Financial Remedy Proceedings have not yet been started.
In some ways, the changes are procedurally unlikely to make a substantial change, given how rare contested applications were in the first place, and how in cases where Decree Absolute was not delayed, the process could be concluded within 4 -8 months subject to Court processing times in any event. However, it may reduce animosity between divorcing couples, though this is yet to be seen. A concern I have as a practitioner is that having no outlet as to the reason for the breakdown (where there is or has been a triggering event), may lead to Proceedings being more heated later on as there has been no “catharsis” in the act of completing that first application.
Perhaps Proceedings have never been the right place for catharsis in any event…?
If you are a practitioner reading this, it is my view that we may now require better connections with support services such as emotional supporters, therapists, and grief counsellors to help clients to work through the reasons for the breakdown of their relationship, and to come to a place of acceptance where the legal process no longer can assist them with that.
If you are a client or prospective client reading this, how do the changes to the law make you feel?
If you are facing divorce, or considering divorce, and wish to talk it through especially in light of the changes, please do not hesitate to contact one of our specialist family team who are on hand to assist.