No Fault Divorce – A New Era

6th April 2022 brought long awaited change to the divorce process after almost half a century of the current procedure.  A change initially envisaged as part of the Family Law Act 1996 but never enacted, the recent Divorce, Dissolution & Separation Act 2020 finally introduced the No Fault Divorce.

Unlike the previous divorce process, the No Fault divorce no longer requires one of 5 facts to prove that the marriage has broken down irretrievably.  Three of those facts required the applicant to provide details of the other spouse’s conduct and the remaining two facts required a period of separation.  However, in order to obtain a divorce under the new legislation, the applicant spouse or both spouses (as a joint application is also now possible) only need to make a statement that their marriage has broken down irretrievably.

Under the former legislation, the divorce process would usually take between 4 – 6 months, although dealing with the financial and children matters very often took longer.  The new process extends the length of time for the divorce in the hope that this will give both spouses sufficient time to resolve all other issues.  Once a no fault divorce has been applied for and the court has issued the application, there is a 20 week wait before the applicant(s) can apply for what used to be called decree nisi but is now called a conditional order.  Once the conditional order is granted there will then be a 6 week wait until the conditional order can be made final, as with the previous procedure of applying for the decree nisi to be made absolute.  In between these wait periods there will undoubtedly be additional time whilst the court processes the papers, so the process is likely to take more like 8 – 10 months, possibly more if there are delays with the court or with submitting the papers.

It is no longer possible for a respondent to challenge a divorce application, although that very rarely happened in any event.  The challenges that are possible are on the basis of the country in which the application was made, or, on the basis that the marriage is invalid or has already been terminated.

It is hoped that the changes will make the process an easier one to go through, allowing spouses to proceed amicably and concentrate on resolving any issues with child arrangements and financial matters.

Given that many clients have delayed issuing their divorce proceedings in anticipation of this change in law, there is likely to be an influx of instructions in April. Especially as the online divorce portal was suspended to new applications until the new divorce law was in force.

Therefore, if you are anticipating commencement of proceedings, it is important that you seek advice as soon as possible so that your options can be discussed and timings can be adapted to meet yours and your family’s needs.

If you need assistant and/or advice, please contact the Family Team at Whitehead Monckton.