6 April 2022 signals the dawn of a new era in family law with the introduction of the concept of “no-fault divorce” as the Divorce, Dissolution and Separation Act 2020 marks the biggest reform of divorce law seen in the last 50 years.
So, what’s changed?
1. No more blame
The law, as it currently stands, states that in order to apply for a divorce, a spouse must demonstrate that their marriage has irretrievably broken down by relying on one of five facts namely:
- Unreasonable behaviour;
- Two years separation with consent; or
- Five years separation without consent.
Under the existing regime, if a couple decide to separate amicably where there has been no adultery, the only options available without waiting for 5 years, are to wait for 2 years and separate with consent or the spouse commencing the divorce process will have no choice but to rely on the other party’s “unreasonable behaviour”.
Under the new legislation, couples will no longer be required to wait (albeit they still have to have been married for at least 12 months before commencing proceedings) and can divorce without having to make allegations about their partner’s behaviour. This long-awaited reform to the law means that couples can uncouple on a positive note as opposed to allocating blame. This is especially important when parting of ways is a mutual decision and there are children involved.
2. Generally, the application cannot be contested
The new legislation removes the ability for a party to defend the proceedings unless there is a challenge based on technical issues such as jurisdiction, the legal validity of the marriage, fraud, coercion and/or procedural compliance.
3. An option for a joint application
Currently, only one spouse can make an application for the divorce however under the new regime, couples can either apply separately or make a joint application together where they both agree that the relationship has broken down.
4. Removal of legal jargon
The previous archaic language has been modernised under the new law making it easier to understand. The “Petitioner” will become the “Applicant”. The first stage of the divorce is currently known as “Decree Nisi” however this will be changed to “Conditional Order” and the final stage of the divorce, “Decree Absolute” will be referred to as the “Final Order”.
5. Minimum of 20 weeks cooling off period
Under the new regime, a divorcing couple must wait a minimum period of 20 weeks between the date of the divorce application and the Conditional Order, and a further 6 weeks between the Conditional Order and the Final Order which formally ends the marriage.
This means that even the most amicable of divorces will take at least 6 months or more to complete, allowing the parties a period of time to reflect and reconsider their decision before taking such an irrevocable step.
So, what’s the application process?
The new law will require spouses to apply for a Divorce Order to dissolve the marriage on the grounds that it has irretrievably broken down. Under the new regime, the couple will sign a sole or joint statement as conclusive evidence of the permanent breakdown of the marriage. After a period of 20 weeks reflection the parties can then apply for a Conditional Order. If, after reflection the applicant still wishes to proceed, they must confirm this to the Court when they apply for the Conditional Order. If the parties applied jointly, both must confirm their wish to apply for a Conditional Order. Only after a further 6 weeks can the application be made to make the Conditional Order into a Final Order.
The new Divorce, Dissolution and Separation Act 2020 will not see changes made to the law surrounding financial settlements or child arrangements – finances will still need to be addressed on divorce and arrangements for children agreed if appropriate – and so legal advice and representation will remain a vital part of the divorce process.
If you have any questions or need further information with regards to the new divorce legislation our Family Team are here to help and would be happy to assist. Please contact a member of the Family Team on 01603 610911 or email us for more information.
Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.