No fault divorce – what are the key changes?

Following years of campaigning from various groups to create a no-fault divorce system, the Divorce, Dissolution and Separation Bill is finally being implemented on 6 April 2022.

The Bill will bring about key modifications as to the way that the divorce process operates which have not been seen for over fifty years.

Watch: How will no fault divorce change divorce proceedings?

No fault divorce – explore the key changes:

The removal of the five facts

Under current divorce law, there is a requirement to prove the irretrievable breakdown of a couple’s marriage through one of five facts. These are:

  • Adultery;
  • Unreasonable behaviour;
  • Desertion by a party;
  • Two years separation with consent of the other party; or
  • Five years separation without consent of the other party.

In order to progress the divorce at a faster pace than two or five-year separation, many people find themselves having to rely on one of the fault-based provisions, for example unreasonable behaviour. Unfortunately, having to provide a ‘reason’ for the divorce has propelled couples to engage in further conflict as to whom was at fault for the breakdown of the marriage. This is not productive nor conducive in enabling the couple to manage other issues that arise from a divorce such as agreeing arrangements about finances and children.

Instead, this system will be replaced by a simple requirement to confirm that the marriage has irretrievably broken down. This will allow couples to have greater autonomy in their decision to divorce and reduces state interference in a competent adult’s choice as to with whom they continue to have a relationship.

The removal of the ability to defend an application

Another provision of the new divorce process that progresses the issue of autonomy is the removal of the ability to defend an application.

The law currently allows the respondent to the petition to contest the divorce, which historically has involved lengthy and costly court hearings, to decide whether the marriage has irretrievably broken down or not by proving this through one of the five facts.

The ability to defend the divorce has allowed the respondent to often unnecessarily challenge the applicant’s decision to end the relationship. To expand, according to multiple domestic abuse charities, due to the nature of the law, the ability to defend the divorce has often been used by domestic abusers exercising control over their victims.

Indeed, the case of Owens v Owens highlighted the issues that the ability to defend has posed. In this case, the applicant, Mrs Owens, had applied on the basis of unreasonable behaviour from Mr Owens but he decided to defend the application on the basis of exaggeration of his conduct. The Supreme Court held that Mrs Owens had not sufficiently made out the ground of unreasonable behaviour and although it made them “uneasy”, Mrs Owens would have to wait until five years of separation had passed to apply for a divorce without consent. This case clearly shows how the law was no longer in line with modern values as it deferred the decision as to whether one’s marriage had broken down to the paternalistic over view of a judge.

The new process removes the ability to defend the divorce, but it still allows a respondent to dispute it based on genuine legal defences such as the court’s jurisdiction, the validity of the marriage or on grounds that the marriage has already been dissolved. The welcome change will mean that proceedings will become more cost effective, amicable and advocate self-determination.

Changing language

In order to become more accessible to litigants in person, the terminology of many terms in the divorce process will be amended to provide clarity. ‘Petition’ will now be called ‘Application’, ‘Petitioner’ will become ‘Applicant’, ‘Decree Nisi’ has changed to ‘Conditional Order’ and ‘Decree Absolute’ will be ‘Final Order’.

The introduction of joint applications

To further encourage parties’ collaboration, the new process allows for joint applications to be made. This means that instead of ‘applicant’ and ‘respondent’, the parties can be known as ‘applicant 1’ and ‘applicant 2’.

The parties will still be able to answer questions and provide information separately, but their answers will be on the same form, which reduces complexity and allows for open dialogue regarding the next steps in the proceedings.

In cases where either one of both applicants is represented by a solicitor, the application must be made through the digital service. In order to proceed with a joint application, parties will need to agree about who will pay the court fee or come to an agreement to share the fee by one party reimbursing the other.

To add, if parties decide they no longer want to proceed with a joint application at some future point for various reasons such as the party’s relationship declining, it is possible to switch to a sole application at the conditional order and final order stage.

Despite the joint application process being available at the beginning of the proceedings, there may be circumstances in which a joint application will not be appropriate, for example in circumstances where there has been domestic abuse, in which case the ability to make a sole application is available.

Introduction of new minimum period before conditional order

The new process will involve the parties waiting a minimum period of twenty weeks referred to as the “cooling off period” from the point of issue of the application for a divorce to when the parties can apply for a conditional order, in addition to the further period of 6 weeks and 1 day between conditional order and final order. There is currently no such statutory period between the start of the proceedings and conditional order stage. This new period has been designed to allow the parties to reflect as to whether they want to continue with the divorce or not and allow for arrangements for the future to be made.

The whole process will now take a minimum of twenty six weeks, however, the parties will often be advised to resolve the financial aspects of their divorce before proceeding with the final order and so the process is likely to take longer, depending on the level of agreement that can be reached.

How Moore Barlow can help

We understand that the breakdown of a marriage can be a highly stressful time in one’s life. We are able to advise on all steps of the divorce process and in particular, the arrangements for finances and children.

If you are undecided as to whether to progress under the current divorce process or new process, we will be able to provide advice as to which is most beneficial for your specific circumstances.

We are here to help – contact our experienced family and divorce team