Divorce and Separation: No Fault Divorce

 

From 6 April 2022, No Fault Divorce will be available in England & Wales although lawyers are still waiting for the detailed rules that will underpin this change in the law to be published.

Here we have highlighted the key changes that No Fault Divorce will introduce.

 

Terminology →

No Fault Divorce will update the language of divorce:

  • A Divorce Petition will become an Application for a Divorce Order
  • The Petition will become The Application
  • A Decree Nisi (the first decree of divorce) will become a Conditional Order
  • A Decree Absolute (the final decree of divorce) will become a Final Divorce Order
  • A Petitioner will become the Applicant. Where there is a joint application both parties will be The Applicants

12 Month Rule →

The rule preventing a couple from divorcing within one year from the date of their marriage will remain once No Fault Divorce becomes law. Couples will continue to be able to apply for a Judicial Separation – which will mean that some of the financial issues can be resolved even though the couple will remain married.

Online Applications →

From September 2021 it became mandatory for all petitions for divorce to be made online.  A new online portal is currently being developed for the ‘No Fault Divorce’ route which will eventually make it possible for parties to make sole and joint applications online.  The timing of when these services will be available has not yet been confirmed and it may be that some applications will still need be made on paper initially.

Joint Applications →

For the first time it will be possible for couples to make a joint application for divorce. Sole applications will also continue to be available.

Defended Divorce →

It will no longer be possible for one party to defend the divorce. It will be possible to ‘challenge’ the divorce on limited grounds including lack of jurisdiction, validity of the marriage, fraud and procedural compliance.

Irretrievable Breakdown →

The sole ground for divorce will continue to apply and under the new law, applicants will provide a statement of ‘Irretrievable Breakdown’ of the marriage. However, in a change from the current procedure, the Court must accept this statement as evidence that the marriage has broken down irretrievably. The five facts that are currently required to be proved (adultery, behaviour, desertion, two years separation (with consent) and five years’ separation (without consent)) will no longer be relevant.

Two Stage Process →

The two stage process will remain, with a couple first receiving a Conditional Order and then six weeks from that date, a Final Order.

A specific ‘cooling off’ period of 20 weeks will be introduced by the new law, so that the Applicant(s) will not be able to confirm that they wish to proceed and apply for the Conditional Order before the expiration of 20 weeks from the start of the proceedings.

The whole process cannot be completed before the expiration of 26 weeks from start to finish.

Should You Wait For No Fault Divorce? →

The introduction of No Fault Divorce is a hugely welcome development for many couples wanting to end their relationship in a co-operative and constructive way.

Each situation is different and, for example, there may be tax implications of waiting until April 2022.

If you are thinking about waiting, you should get legal advice relevant to your particular circumstances before making a decision on the timing of your divorce proceedings. Please contact any of our expert family lawyers if you would like to talk this through.

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