The move to 'no fault' divorce has been the subject of campaigns for several years and is now set to arrive in practice on 6 April 2022. In 2020, citing 'unreasonable behaviour' as the reason for marital relationship breakdown was the most common type of petition before the Court in opposite sex and same-sex marriages. Moving the focus from dredging up the negative events of the past and the animosity which may have subsided following the initial marriage breakup is seen as a positive way forward for parties living through a relationship breakdown.
The event of online divorce has been a welcome, speedier process under the current divorce laws. Provided divorce petitions are not defended, clients have seen applications progress from issuing the petition to the first of the two decrees, Decree Nisi, in as little as 8 weeks. Then there is a mandatory wait of 6 weeks before the Petitioner can apply for the second, final decree in divorce - the Decree Absolute.
There are many situations where a joint application for divorce isn't feasible or appropriate, and the option for one person to apply to the Court for a divorce is not being removed under the new rules.
Guidance has just been circulated by the Ministry of Justice and the key changes have been confirmed as -
- For the first time spouses can apply jointly to the Court for a divorce, dissolution of their civil partnership or judicial separation.
- It is possible to ask the Court to switch from a joint
application to a sole application if your situation necessitates
this; however you have to wait for the conditional order stage
(Decree Nisi equivalent ) to be reached.
- A new 20-week (minimum) delay period between the start of the divorce proceedings (when the court issues the application) and when the applicant(s) may apply for a conditional order (replacing the Decree Nisi) is being introduced. This new delay does not apply to nullity or judicial separation proceedings.
- The ability to contest the divorce itself is being removed. On a sole divorce application, the respondent can dispute the application on limited bases, i.e. the basis of jurisdiction (i.e. whether the Court in England and/or Wales should have conduct of the proceedings); validity of the marriage or civil partnership; if they say the marriage has already been brought to an end elsewhere; fraud or procedural non-compliance.
- A new digital divorce platform has been designed and will be launched on 6 April 2022.
- One solicitor could apply, on paper, for the joint divorce application and act for both parties. However this joint representation would only be for the divorce, as a conflict of interest would arise for financial settlement advice.
For some clients, the introduction of a 20 week delay in progressing proceedings is not convenient or attractive. At the minimum, the new divorce process is going to take 26 weeks (approx. 6 months) once the application is with the Court. This includes the mandatory delay of 6 weeks from the conditional order to the final order (replacing Decree Absolute), which isn't changing under the new rules.
If your personal situation is such that you need to progress a divorce under the current divorce law, then you must submit your divorce petition by 4pm on 31 March 2022 using the digital/online process and/or ensure that any paper application is received by the relevant Court by the same deadline. There is provision for urgent divorce applications to be considered under the current rules up until 4pm on 5 April 2022, if required. Practitioners are already being warned that applications received by 31 March cannot be guaranteed to be issued ahead of 6 April; therefore applications under the current rules should be lodged as early as possible before the cut off date to ensure the best possible chance of being issued by the court in time.
*NB the guidance as to processes and changes being introduced to the divorce process from 31 March 2022 are correct as at the date of writing this article 28.02.2022, but are subject to further revision and updates. The full MoJ information pack can be found here.
Originally published 02 Mar 2022
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.