Divorce & Dissolution of Civil Partnerships

The Divorce, Dissolution and Separation Act 2020 reforms the divorce process to remove the concept of fault. It also reforms the law relating to dissolution of civil partnerships. For brevity, references to marriage and divorce below apply equally to civil partnerships and their dissolution.

No-fault divorce will reduce conflict, allowing couples to focus on important issues like children, property and finances.

Previously in England and Wales, a divorce could only take place if there was a ‘reason’ for the divorce, such as blaming one of the parties for unreasonable behaviour or being separated for a certain number of years. This was the case even when a couple had simply grown apart and/or made a mutual decision to separate.

The Divorce, Dissolution and Separation Act 2020, which came into force in April 2022, introduced  “no fault divorce” in England and Wales. This means that one spouse, or a couple jointly, can now apply for divorce simply by stating their marriage has broken down irretrievably. Irretrievable breakdown of the marriage is now the sole ground for divorce, removing  the need to apportion blame or provide a ‘reason’ to the court when starting divorce proceedings.

With no-fault divorce, couples can focus on key practical decisions involving children or their finances and look to the future rather than apportioning blame for the relationship breakdown.

Furthermore, parties can choose to issue the divorce application jointly meaning the court does not have a record of one party ‘divorcing the other’.

Sole Application

To commence a sole divorce application, where one spouse is the applicant, and the other is the respondent, the applicant submits a divorce application to the court with a statement of irretrievable breakdown. The applicant will need to pay the requisite court fee, currently £593.

After the application has been submitted, the court will issue a divorce application, which must then be served on the respondent spouse. When the application is issued, a 20-week period of reflection begins. Within this 20-week period, the respondent must file their acknowledgment of service confirming they are in receipt of the divorce application. They will have to confirm that they have received the divorce application and verify their contact details. They can no longer defend the divorce application because they object to the divorce.

A respondent can only dispute the divorce proceedings on the following grounds:

• The court does not have jurisdiction for the divorce;
• The validity of the marriage; or
• The subsistence of the marriage, in that the parties are already divorced.

Joint Application

For a joint application, the parties apply together for the divorce. The parties can choose either spouse to be considered ‘Applicant 1’ who will initiate the divorce application, and importantly, pay the court fee, with Applicant 2 filling in their information after receipt of the initial draft application from Applicant 1.

The draft application is then sent back to Applicant 1 who will then submit the divorce application to be filed at court on behalf of the parties. The court will then send a copy of the Notice of Proceedings  to both parties and the 20-week reflection period will begin.

Unlike the individual application, there is no need for either party to file an Acknowledgment of Service in a joint application. However, both parties must acknowledge receipt of the Notice of Proceedings within 14 days.

A joint application for divorce requires an element of cooperation between the parties.

What happens next?

After the 20-week reflection period is over, if both or either party still wishes to divorce, they can apply for a conditional order of divorce.

When the conditional order is received and accepted, the court will issue a Certificate of Entitlement. After this is issued, there is a further 6-week and one day waiting period between the issuing of the conditional order and the time when either party is allowed to apply for a final order from the court.

Once a final order is issued, the divorce has been finalised, the marriage is legally ended and the final order replaces the marriage certificate.

Can you switch between the two types of application?

If one of the applicants in the joint divorce is not cooperating at the initial stage, before the application has been submitted to the court, one applicant can start again and make a sole divorce application instead.

If a joint application for divorce has been issued and one applicant is not cooperating in the process,  the court allows a party to switch the divorce to a sole application to finalise the divorce. Either party in a joint divorce can proceed with a sole application if they wish. This can be done when applying for a conditional order or at final order stage only, to allow certainty that the application can proceed at these key stages.

When switching from a joint to an sole application, there is no need to make amendments to the original application, as a singular statement of irretrievable breakdown is given the same weight as a joint statement under no-fault divorce.

At the time of conditional order, if only one party wishes to proceed, they must send a copy of the individual application to the other party. The court will likely want proof this has been received.

At the time of the final order, one party must give the other 14 days’ notice of their intention to give notice to the court on a sole basis that they want the conditional order to be made final. They must file a certificate of service after doing this. However, if the application started off as a joint application but became a sole application at the time of conditional order, this is not necessary.

A sole application cannot be turned into a joint application.

Financial settlements

Whilst the divorce process has become easier and more accessible with the change of law, it is crucial to note that the divorce process alone will not deal with the division of a couple’s finances. Dividing matrimonial property and money is dealt with separately by the court.

The only way to obtain a binding financial agreement is to have it drawn up into a financial order and have it approved by the court. This is a specialist area upon which divorcing couples should take specialist legal advice. This should not affect the decision of whether to proceed with a sole or joint application.