From April 6, there will be no need to allocate fault to one party in order to get a ‘quickie divorce’. The huge change will, according to many, see couples able to focus entirely on their children rather than the conflict of ending a marriage. But how will the procedure work? And are there any down sides to the change?
Lisa Dawson, Partner and Head of Family at Ellisons Solicitors, explores the new law which has been years in the making.
The evolution of divorce in the UK
Divorce was originally introduced in 1670, where only men could apply for a divorce on the grounds of adultery or life-threatening treatment. The Matrimonial Causes Act was then introduced in 1857, 165 years ago, this made the process of divorce available more generally. Since then, many changes have been made to allow couples to divorce more easily, from women having an equal footing on being able to apply for a divorce in 1923, to couples only needing to be separated for two years in 1973. But arguably, nothing has been as monumental as the new no fault divorce.
Divorces in the UK currently have to have irretrievably broken down and then be accompanied by one of 5 grounds. These are adultery, unreasonable behaviour, two years separation by consent, desertion or five years separation without consent. Adultery and unreasonable behaviour were known as the ‘quickie’ divorce because there was no period of time you had to wait before filing a petition for divorce with the court. However the key theme was that one party had to take the blame for the breakdown of a marriage. With this new legislation, no fault means just that – there is no blame for either party. It arguably allows the divorce to proceed without animosity and contention.
But how do couples go about getting a no fault divorce? One big difference is that the parties can apply jointly for a divorce, this has never been available before. The other main difference is an enforced time limit between issuing the divorce petition and when you can apply for a conditional order (previously decree nisi). Under current divorce law, you can apply for decree nisi (conditional order) as soon as you receive the acknowledgment of service from the respondent. This allowed the petition to progress fairly quickly (subject of course to court delays). The no fault divorce in comparison will in most circumstances mean the divorce process takes longer than it did before. This was the compromise to bringing in no fault divorce. It will be known as a ‘cooling off period’. Under the no fault divorce, you won’t be able to apply for a conditional order until at least 20 weeks after the issuing of the petition has passed. The court will then list the conditional order to be pronounced, at the moment we do not know how long this part will take as it will depend court timetables. The time limit between conditional order and final order (decree absolute), of six weeks and one day remains the same.
Until now, divorce petitions could be defended, the ‘no fault’ divorce removes the ability to do this in all but very restricted and limited circumstances. The only grounds on which it can be ‘disputed’ is that the marriage is not valid or on the basis of jurisdiction, i.e the validity of the courts of England and Wales to deal with the divorce application. There is no need for both parties to consent, so a divorce can proceed without the other party agreeing.
Why ‘no fault’ divorce is happening now
There has been a campaign to bring in no fault divorce for a number of years. The current, what will be old, system had to blame one party if you wanted to divorce within two years. This was often not an attractive option for those who wanted to proceed amicably. For example, detailing examples of unreasonable behaviour would often cause tension where there was none before. The no fault divorce will not allocate blame, in fact it takes away the fault element entirely.
However, for some, taking away the blame element is a step too far. For example, where one party has committed adultery the other party may want them to take responsibility for the breakdown. A further negative is the enforced time limit. A consent order (an agreed court order detailing the financial arrangements between the parties) cannot be filed until the conditional order has been made. This may cause problems with time limits for implementation of agreements.
But for many the no fault divorce is a welcome, and necessary, change. It is hoped that those who want finality, but had put off filing a divorce petition for two years in order to avoid blame, now have the option of filing a divorce application earlier. The new system also removes the ability for the other party to delay the divorce proceedings by removing the ability to defend the petition. Finally, separating parties often struggle with the concept of allocating blame. They are trying their best to be amicable, but the previous options to divorce ‘quickly’ required someone to take the blame. A separating couple no longer have to worry about this element of their relationship breakdown.
The finer details
For situations involving domestic abuse and child arrangements the position will be the same as it was prior to the new system coming into force – that is that the divorce itself does not impact arrangements for the children or the finances. If there are allegations that need to be raised in respect of behaviour, they can continue to be raised within those proceedings where appropriate. The unavailability to raise them within a divorce application will not impact that.
It is important to stress that in order to allow the new system to come into force, only emergency applications for divorce will be considered from 4.01pm on 31st March 2022 to 6 April 2022 when the new no fault divorce will come into force. This is to allow the current online system to reboot with the new procedure. From 6th April onwards only no fault divorce will be available, all previous grounds of divorce will have been removed.
For further information or support, please contact Partner and Head of Family Law, Lisa Dawson.