No Fault Divorce - Change is Coming

The Divorce, Dissolution and Separation Act 2020 (“DDSA 2020”) received Royal Assent in June 2020 paving the way for 'no fault divorce', bringing about the biggest change in divorce law in the last 50 years.

Back in 1990, the Law Commission identified many problems with the current process, so this change has been a long time coming. It has finally taken place due to tireless campaigning, particularly by Resolution, the membership organisation for family lawyers, who felt that the requirement to apportion blame in divorce petitions based upon unreasonable behaviour encouraged conflict at an already difficult time. Over the last few years, divorce has become easier to access. The court service has created an online divorce portal, making starting a divorce easier for those who are unrepresented. Unfortunately, it did not make things cheaper, with the court fee for filing for divorce having risen from £550 to £593 in September 2021.The new no fault system is due to be introduced on 6 April 2022. The court service suggested at the end of January 2022 that there is likely to be a cut-off date (possibly 26 March 2022) after which divorce petitions under the current law may not be accepted. We await the publication of the new divorce petition which is expected mid-February 2022. Work is underway to prepare the online divorce portal's system to accommodate the changes. A review of the DDSA 2020 highlights the following changes and areas that are staying the same:

• The '1 year rule' remains Parties must still have been married for 1 year before initiating divorce proceedings.

• Option of joint divorce applications Either one party, or both parties together can now apply to the court for a 'divorce order' dissolving the marriage. For the first time, parties can apply jointly for a divorce. If issues arise using this process, a joint application can be converted into a sole application.

• Statement of irretrievable breakdown The applicant or both parties together must make a statement that the marriage has broken down irretrievably. The court is obliged to take this statement as 'conclusive evidence'.

This means the applicant no longer needs to prove one of the old '5 facts' (or 4 facts for civil partnerships) by convincing the court that the marriage has irretrievably broken down. Previously these facts were adultery, unreasonable behaviour, desertion or 2 years' separation with consent or 5 years' separation without consent.

The statement of irretrievable breakdown applies for judicial separation and dissolution of civil partnerships.

• End to the blame game Reliance on one party's 'bad conduct' is removed.

Family lawyers and divorcing couples will welcome this change. The fault-based system did accommodate couples who had simply grown apart but did not want to wait 2 years to divorce on the basis of their separation. One party was therefore required to set out examples of the other's unreasonable behaviour to kick off what both wanted to be an amicable process.

It is hoped that the no fault process will make it easier for victims of domestic violence and coercive control to divorce. We will no longer have a situation which requires victims to set out examples of their abuser's behaviour on paper to justify the divorce, and then serve that upon the perpetrator at home. Understandably, many people in difficult domestic situations were too scared to divorce as a result.

• Harder to dispute a divorce The ability for the other party to defend the divorce has been removed. It is more likely that a divorce order will be made where the marriage has broken down irretrievably. How this will play out in practice remains to be seen. The divorce proceedings can still be challenged on the basis of jurisdiction, validity of the marriage, fraud or procedural compliance.

• Timing There will be a minimum 20-week period from the start of divorce proceedings to when the application can be progressed to 'conditional order' (currently known as 'decree nisi'). There is currently no minimum time requirement for this first stage.  There will then be a minimum 6-week period from 'conditional order' to 'final order' (currently known as 'decree absolute'). The divorce process will therefore take a minimum of 26 weeks. These time periods may be varied upon application for example, in case of terminal illness or imminent birth of a child.

• Reasons for delay The final order of divorce can be delayed to ensure financial provision is 'reasonable and fair or the best that can be made in the circumstances'.

• Language The Latin terms 'decree nisi' and 'decree absolute' are to be replaced with 'conditional order' and 'final order', thus making the terminology clearer and more accessible to non-lawyers. The 'petition' is becoming 'an application for a divorce order', and 'petitioners' becoming 'applicants'.

So what does this mean for divorcing couples?

The changes look to move the divorce process forward and make it more accessible. The minimum time periods won't necessarily make divorcing any quicker, but the idea is that this will give couples time to consider the financial and child arrangements before the divorce process is concluded.Our family team are advising new clients that for non-urgent divorce petitions, it may be worth waiting until April 2022 to start the divorce. We hope that by removing the focus on blame to initiate the divorce, separating couples will begin the process in a kinder, more collaborative way. This may pave the way for more constructive discussions when unpicking the couple's finances and child arrangements.

If you need assistance with divorce, dissolution of civil partnership, or separation generally, then please contact our friendly, professional Family Team to find out how we can help.