No-fault divorce: your questions answered
19 April 2022
Trainee Solicitor Melanie Arens answers some of the most frequently asked questions about the new no-fault divorce law.
No-fault divorce: the biggest change in divorce laws in the UK for 50 years
6 April 2022 marked the biggest change in divorce laws in the UK for 50 years when the new Divorce, Dissolution and Separation Act 2020 came into force. The Act follows decades of campaigning by interest groups such as Resolution, the national organisation of family law professionals committed to a constructive approach to family law issues, which fought for couples to be able to obtain a divorce without having to cite the fault of one party for the breakdown. As such, it effectively removes blame from the process.
No-fault divorce: your questions answered
Q: What was wrong with the old law?
A: The previous law required one party from the separating couple to start the legal process by “petitioning” the other for the divorce, so automatically setting a confrontational tone to the process.
The previous law required parties who wanted to have a no-fault divorce to live apart for a continuous period of two years before they could even start the divorce paperwork (or for five years where the responding party did not agree to the divorce). Waiting for these timescales to elapse could have far-reaching emotional, financial and practical implications for parting couples. For those wishing to divorce within two years of first separating, the only option would be for one party to blame the other for the marriage breakdown – by detailing their adultery, behaviour-based conduct or desertion. These rules often brought hostility and even dishonesty into the divorce process, as couples dragged up, exaggerated or even invented the required grounds in a desperate bid to get the petition across the line before the courts. Worse still, the approach could sour the entirely separate processes for dealing with finances and arrangements for children before they had even started.
Q: What’s does a “no-fault” divorce actually mean in practice?
A: All of the previous requirements for prescribed circumstances around the breakdown have gone. Now these are all replaced by a simple statement signed by both or either party, confirming that the marriage has irretrievably broken down. This means an end to disputes over the details in the paperwork or of the risk of the respondent defending the divorce, as the statement alone is sufficient for the court to issue a divorce order (except on limited technical grounds). Under the new scheme, either party can “apply” for the divorce; there is even the option of submitting a joint application for the first time.
In theory, this should create a speedier, more amicable and streamlined process to finalise marriage break-ups. It is hoped that reduced conflict in divorce will have benefits for the children of separating parents and provide a better way forward for couples in particularly difficult or abusive relationships.
The rules apply to both marriages and civil partnerships in England and Wales (Northern Ireland and Scotland operate different legal models).
Q: I’ve heard the language has changed under the new law? What’s new?
A: In line with this new, more amicable culture, both parties in the process are now called “applicants” - and are known as applicant one and applicant two - rather than as the “petitioner” and “respondent” as with the previous scheme. The parties now “apply” for the divorce, as opposed to one “petitioning” the other.
The terminology for the legal orders obtained in divorce/dissolution are also to be updated: the decree nisi has become the conditional order and the decree absolute is now the final order.
Q: I wanted my partner’s adultery/unreasonable behaviour to be named in the divorce process – to remove it feels disempowering.
A: Getting a divorce is often a painful and highly emotive experience, but campaigners for the current reform argued that bringing morality into the divorce process was counterproductive and antagonistic. Many family law practitioners hope that the changes will move the focus away from accusation and towards the constructive resolution of important practical matters, such the division of finances and future arrangements for any children.
Separating couples may now need to direct their personal hurt and healing away from the legal system and towards other avenues of support, such as family, friends and counsellors.
Q: Will my partner get away more lightly when sorting out the finances or arrangements for the children if the courts aren’t aware of their behaviour?
A: No, dealing with the division of finances on divorce - and dealing with arrangements for any children – have always been completely independent processes in obtaining a divorce. A respondent’s behaviour almost never had any bearing on financial matters, so there is actually no change to these aspects under the new rules.
Q: Can I get a divorce before sorting out the finances?
A: Yes, you can, technically, get a divorce without agreeing the finances between yourselves or through the courts. However, it is vital to seek advice from a specialist financial solicitor before the final divorce order, not only to ensure a fair split that deals with all of the marital assets but also, most importantly, to ensure that either party is not disadvantaged financially by any of the legal consequences of the divorce. A widow’s pension, benefits, and provisions under the couple’s wills are just a few of the matters that can be impacted by a divorce order and should be dealt with appropriately in advance. It is also worth bearing in mind that a financial order from the courts cannot be granted for a divorcee once they have remarried, and so the imperative to obtain early legal advice cannot be emphasised strongly enough!
Q: How does the new law impact the timescales for getting divorced?
A: The law still requires a couple to have been married for at least twelve months before they can consider applying for a divorce. However, the new rules introduce a minimum 20-week delay between submitting the divorce application and the right for the applicant(s) to confirm they wish the application to continue/the conditional order to be issued (previously, the decree nisi). There is then a further six-week period between the date of issue of the conditional order and the court granting a final order (previously, the decree absolute). This amounts to approximately a six-month minimum process from start to finish. Dealing with the separate issue of the matrimonial finances and delays within the court system are likely to extend this timescale for many couples.
Q: Does this new speedier system risk divorces being rushed through and regretted?
A: For many couples, if not most, the point in their life where they take steps to approach a solicitor or initiate a divorce application is a life-changing one. As such, it is unlikely to be done on a whim. Most divorces will still take considerably longer than the minimum 26-week timescale. Rather than requiring periods of separation before the application, time should now be focused on resolving the practical matters that impact the couple’s future.
Q: My partner and I have agreed to an amicable divorce - do we even need a lawyer?
A: Whilst a divorce application can now be readily started from the comfort of one’s own home, a lawyer can bring added value in ensuring that a fair and sustainable result is reached in the division of finances and arrangements for children. For some couples, a 50:50 split may be the soundest solution, but many more have sensitive family circumstances to consider, as well as a range of complex finances to balance.
Q: I like the idea of applying for a divorce jointly – can we use the same solicitor?
A: The notion of a joint application may be attractive to parties who feel their decision to divorce is amicable and who wish to make an expression of unity either for the benefit of others or themselves. Until this point, solicitors have not been able to act for both parties in the divorce process due to prohibitions on acting where there is or may be a conflict of interests. At this stage, the regulatory body for solicitors, the SRA, has not issued a determinative answer to this question. Many practitioners will be watching closely in the coming months to see how representation in joint applications unfolds.
Q: I’ve heard horror stories about aggressive divorce solicitors running up excessive bills in litigation – how can I avoid this?
A: Many family law solicitors subscribe to a code of practice that commits them to constructive resolution with minimal conflict. Look for a firm where its lawyers are members of Resolution, which offers a menu of services, including mediation, collaborative law and other non-court resolution options. These can be strong indications of intentions to take an amicable approach to matters. Some law firms have produced helpful guides for an amicable separation, such as our Good Divorce Guide and Resolution’s booklet Parenting through separation.
If you have a family law matter that you need support with, please do not hesitate to contact one of our specialist family law solicitors.
