The No Fault Divorce: What will it look like? By Veronica Beard

By our Head of Family Law, Veronica Beard.

This year will see the biggest reform in divorce law for 50 years. It will transform the way divorce proceedings are conducted and will make the process far more accessible to those parties seeking a divorce.

The changes are due to take effect from 6th April 2022 in accordance with the Divorce Dissolution and Separation Act of 2020. The purpose of the reform is said to be to reduce conflict within the legal process and thus be less damaging for both Applicants and any children involved. It is hoped it will reduce the length of the divorce process, avoid delay, reduce costs and financial hardship.

The new process will completely remove the current requirement to provide evidence which supports the only ground for divorce, which is that the marriage has irretrievably broken down. Accordingly, the need to justify the existence of one of the 5 facts eg adultery, unreasonable behaviour, separation by consent or desertion is no longer required in any future proceedings. Thus, the need to attribute blame in any format is removed and fault based divorces will become a thing of the past.

The reform has been prompted by the case of Owens v. Owens (2018) which saw Mrs Owens struggle and fail to convince the court that her unreasonable behaviour petition was justifiable and left her to contend with a deeply unhappy marriage. No longer will this be a potential scenario for any new divorce Applicant: the requirement for the future will simply be to produce a Statement of Irretrievable Breakdown.

For Respondents, the new rules may not be so welcome when considering there is to be no option to contest or defend the divorce. The Statement of Irretrievable Breakdown is effectively undefendable. The only objection to the proceedings can be that relating to jurisdiction i.e. whether the court in England and Wales has the authority to dissolve the marriage, given the parties location or whether the marriage itself is valid. These will become ‘disputed’ rather than ‘defended’ cases.

The thrust of the new proceedings will be for matters to be conducted amicably where at all possible, without conflict and the option to commence the proceedings as joint applicants at the outset is therefore encouraged.

In circumstances where you are unlikely to have the co-operation of your spouse, there is the option to apply as a sole Applicant or indeed to convert the proceedings to one of sole Applicant from that of joint if there is subsequently no compliance from your spouse.

The process will consist of 2 stages. Similar to the current procedure of divorce issue to Decree Nisi and then on to Decree Absolute, the new proceedings will replace those with the more modern names of Conditional Orders and Final Orders.

The timescale is of interest, the court having deliberately imposed a 20 week period from the commencement of the proceedings to the date of Conditional Order. The intention behind this is to ensure that both parties have an opportunity to consider whether the decision to seek a divorce is correct. At the end of the 20 week period, the Applicant can apply for the Final Order which will accordingly dissolve the marriage. The Final Order can be applied for by either of the joint Applicants.

The Respondent who is not a joint Applicant to the proceedings will have the opportunity to apply for the Final Order to be delayed pending resolution of the financial agreement. The court will make the Final Order provided there is no application by the Respondent for delay with regard to the finances.

There appears to be no option to claim costs from the other party: the presumption appears to be that joint applicants will agree to pay the fees jointly. In circumstances where you are the sole Applicant there is no option to claim half of the fee back from your spouse: seemingly where there is no blame, there is gain on costs.

Whilst the proceedings will be far simpler, there is currently no mention by the court of a reduction to the court issue fee which currently stands at £593.00. We will be watching out for any changes there.

If you need advice or assistance to obtain a divorce or financial settlement, please contact our Head of Family Law, Veronica Beard (FCILEx) via Veronica@bradleyhayneslaw.co.uk or 01905 900 949.