The Divorce, Dissolution and Separation Act 2020 which confirmed that no fault divorce would be introduced was passed in June 2020. No fault divorce is now due to become available to separating couples from 6 April 2022. But what does it actually mean?
At the moment, if people want to get divorced and they have been separated for less than two years, one of them has to say that the other has either committed adultery or behaved unreasonably. This is not the best way to start off what is usually a stressful and emotional journey for the couple. If a couple has been separated for more than two years, they can both agree to a divorce without any blame, or they can wait for 5 years, after which no blame or agreement is needed.
No fault divorce will change all of this. From 6 April, either person can start the divorce on the basis that they consider the marriage to have irretrievably broken down. There will be no blame or separation period (although I understand that you will still have to be married for more than a year to start a divorce).
The divorce application can be made by one person only, or it can be made jointly. If it’s made jointly, I understand that both people will have to complete the forms and consent at each stage. It may be important to the couple that the application is made jointly, but from a legal, administrative and cost point of view (if agreement regarding payment of the Court fee is reached), it could be more straightforward for one person to start the divorce.
In terms of process, at the moment it looks like this:-
1. The person applying (the Applicant/Petitioner) sends the divorce application to Court usually on the online portal.
2. The Court issues the divorce and sends notice and copies of documents to the other person (the Respondent).
3. The Respondent completes their form in response, confirming whether they agree to the divorce going ahead.
4. If the Respondent agrees, the Applicant applies for Decree Nisi, the first formal stage of the divorce. If the Respondent doesn’t agree, a defended divorce kicks off, which we won’t go into here.
5. The Court pronounces Decree Nisi.
6. The Applicant can apply for Decree Absolute 6 weeks after Decree Nisi is pronounced, although in practice they will usually wait until financial matters are resolved.
7. The Court pronounces Decree Absolute.
From 6 April, the no fault divorce process will look like this:-
1. The person applying sends the divorce application to Court or the application is made jointly, again on the online portal. I think it’s unlikely that people will still be called Applicant/Petitioner and Respondent, but for this purpose of this I shall use these. It is not entirely clear at the moment how a joint application will be made in practice, given that it’s likely to be done online. I assume that these types of questions form part of the reason why things have taken since June 2020 to administer.
2. The Court will issue the divorce and send notification and copies of the documents to the Respondent, if it’s not done jointly. The Respondent will still have to complete some form of response, to confirm that they have received the documents, and that they are not alleging that one of the very small number of exceptions apply on which someone can object to a divorce.
3. 20 weeks after the divorce has started, the Applicant can apply for the Conditional Order, which is the equivalent of the Decree Nisi, or this will be done jointly. This period can be shortened by order of a Judge. It is very likely that there will need to be a very good reason for shortening the period, for example, if someone is terminally ill.
4. The Court pronounces the Conditional Order.
5. 6 weeks after the Conditional Order has been pronounced, the Divorce Order can be applied for, the equivalent of the Decree Absolute, either by the Applicant or jointly.
6. The Court pronounces the Divorce Order.
I have not yet seen any of the new Court forms for the no fault divorce, so I do not know to what extent they will differ from the current forms, or how the joint procedure will work in practce.
In my opinion a no fault divorce is long overdue here in England and Wales. Most couples are likely to prefer this to the current requirement of blame, and therefore may prefer to wait until the no fault divorce is available from 6 April. However, if a couple is keen to start a divorce and they both agree that it will be on the basis of unreasonable behaviour, adultery or two years separation, they may wish to apply before the 6 April. The current procedure, without the requirement to wait the 20 weeks is likely to be quicker, especially when we take into account that there might be more applications being made in April than usual, and any teething issues that there might be with the new system.
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