Divorce Week: No-Fault Divorce: Separation In The 21st Century

No-fault divorce, arguably the biggest reform to the law governing divorce in England and Wales in over fifty years, comes into force on 6 April when the Divorce, Dissolution and Separation Act 2020 becomes law. The Act received royal assent on 25 June 2020 but has been delayed until now as a result of the huge IT overhaul required to implement the wide-ranging changes.

The new law attempts to remove any requirement of blame from the formal aspect of the divorce process, following widespread criticism of the present system in England and Wales, which relies on the existence of one of the following five facts to prove the marriage has broken down irretrievably:

• adultery;
• unreasonable behaviour;
• desertion;
• two years' separation with the consent of the other party;
• five years' separation (no consent required).

(Same-sex couples have historically not been able to rely on 'adultery' on the basis of a technical definition but have been able to include any infidelity under the second category of 'unreasonable behaviour')

The present system has inevitably led to issues in a number of cases, with many voicing concerns that it exacerbates conflict and acrimony between spouses. For example, in the case of Owens v Owens [2018] UKSC 41 Mrs Owens had to wait for five years following separation before she could apply for divorce after her husband defended the divorce by challenging the particulars on which she had sought to rely.

The Divorce, Dissolution and Separation Act seeks to simplify the regime, and reduce anguish in what is often a stressful situation. Specifically, it will:

• remove the requirement to cite conduct or separation facts;
• remove the ability to defend the decision to divorce;
• permit joint applications for the first time;
• institute a new minimum overall timeframe of six months (or 26 weeks) to allow time for reflection and practical arrangements;
• change the legal nomenclature used for divorce to make the language more accessible to non-lawyers.

So, how will the new system work in practice?

1. It is likely that the vast majority of applications will be made online. Applications can be made by one spouse or by both spouses jointly. This may come as a relief to some couples who wish to avoid the arguments that can be caused by one spouse having to make accusations against the other, and reduce any feeling that one party is "in control".  An application that starts out as a joint application can become a sole application if one of the applicants no longer wishes to proceed.
2. The application simply requires confirmation that the marriage has broken down irretrievably, which will hopefully put an end to 'the blame game' that often permeates the preliminary stages of a separation.
3. Service by the court is the default, and the application will now usually be served by email in the first instance. Where the application is served by the applicant, it must be served within 28 days. It may be possible to extend this deadline in limited circumstances by applying to the court for an extension.
4. The respondent must acknowledge service within 14 days, and they must file an answer within 21 days. Joint applicants do not need to acknowledge service of the application.
5. The option for a respondent to apply to the court to request consideration of their financial position after divorce will remain.
6. A court fee will be payable, but there has been speculation that the fee will be lower than the present fee of £593. There is no opportunity to apply for costs in the application itself - a separate application would have to be made. Costs awards will only be made in exceptional cases, where the respondent's conduct has been "unreasonable".
7. Once 20 weeks have elapsed from when the application was made, the court can make a Conditional Order (formerly known as Decree Nisi) on a date to be fixed. Thereafter, once six weeks have elapsed from the making of the Conditional Order, the Court can make the Final Order (formerly known as Decree Absolute). Even taking into account the current backlog that the court is experiencing, parties can now expect the divorce itself to take broadly around 6 months to complete.
8. At the time of writing, the deadlines are as follows:
   • digital applications for a divorce in the old format must be submitted by 4pm on 31 March 2022;
   • paper applications must be received by the court by 4pm on 31 March 2022;
   • urgent applications must be received by the court by 4pm on 5 April 2022 (for example, cases involving a jurisdiction race or an application for a freezing injunction);
   • the new paper and digital services will be available from 6 April 2022.

We are looking forward to the introduction of the new system, in the hope that it will provide our clients with more certainty and reduce the stress involved at the outset of their separation, while encouraging a more constructive, less acrimonious approach. Despite most family law practitioners having moved with the times, there is still the occasional petition written (or typed) in 'poison ink' that only serves to upset and destabilise both parties. With the introduction of no-fault divorce, the last vestiges of this antiquated practice should be consigned to history.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.