Family law practitioners have been campaigning for the end of fault-based divorce for decades and we are delighted that this is, at last, going to be possible from April 2022. As this date draws closer, we are getting more and more questions from about the upcoming changes – here are some of the most frequent:
Q: What's the current system?
A: Spouses are currently unable to apply for a divorce without waiting for a period of separation of two years or more, unless they demonstrate to the court that one of them is to blame for the irretrievable breakdown of their marriage.
Having to state the other's adultery, or provide a list of ‘unreasonable' behaviours of the other is undoubtedly an unpleasant start to the process of divorce. Of course, it's not always that simple and the breakdown of a marriage can be a result of many factors, not just one party's actions. In fact, we have many clients who ask if they can cite their own adultery or behaviour in order to get the divorce process started, but the current process means that even the most amicable of separating couples need to put together and agree on a list of one of their behaviours which caused the relationship breakdown.
It's also possible under the current system for spouses to defend the divorce or start their own divorce proceedings, which often leads to otherwise unnecessary court hearings, and significant costs and delays.
Q: What's changing?
A: Spouses in marriages and civil partnerships will be able to apply for a "Divorce Order".
- spouses will be able to apply jointly for a divorce
- the only requirement will be for one spouse, or both spouses, to send a short statement to the court which will be treated as conclusive evidence of the irretrievable breakdown
- it will still be possible for one spouse to apply for a divorce, though this may be on the same basis and they need not cite any reasons for the breakdown of the marriage
Q: How long will it take to divorce under the new rules?
A: The new process involves 4 steps:
- Application for divorce: by either or both spouses.
- Acknowledgement: The divorce application is issued and the other spouse (or both spouses if the application is made jointly) must acknowledge this within 14 days.
- Application for Conditional Order (previously known as the Decree Nisi): may be made after a period of 20 weeks.
- Application of Final Order (previously known as the Decree Absolute, which dissolves the marriage): may be made after six weeks and one day after the Conditional Order is pronounced.
The main change in the divorce process is that the applicant (or both parties if a joint application is made) need to wait for a period of 20 weeks, known as the ‘period of reflection', before applying for the Conditional Order. This does therefore make the process a little longer than the current system.
Once the Conditional Order is made, the parties then need to wait a period of six weeks and one day before applying for the Final Order.
If each step is taken promptly, it will take around six months to reach a Final Order. It will though be possible to apply to shorten these timescales in exceptional circumstances.
Q: What if my partner wants a divorce but I don't?
A: Once divorce proceedings have been issued under the new law, it is no longer possible for the other party to challenge or seek to defend a divorce petition save in very limited circumstances such as fraud, procedural error, issues as to jurisdiction or the existence of the marriage or civil partnership itself.
Q: What if I still want to blame my partner?
A: The no-fault divorce process will entirely replace the old system, so this will not be possible within the new application for a divorce. However, as experienced family law practitioners we can attest that this is rarely the best way to start the process of separation and divorce, particularly when there are still financial and children arrangements to deal with. We always strive to deal with matters in a non-confrontational and conciliatory way, appreciating that parties involved in proceedings often have to work together for the sake of their family long after proceedings have finished.
Q: Should I wait until the new rules come into force before getting divorced?
A: It is ultimately a matter for each individual to decide whether they want to wait until the new “no fault” law comes into force in April 2022 or whether they want to take steps to move forward with a divorce now. There may be certain factors you wish to consider such as whether the other party is likely to challenge a divorce, whether any immediate steps need to be taken if there are issues relating to jurisdiction or if there is a need to deal with financial arrangements sooner rather than later (though divorce does not impact on the financial outcome itself).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.