Partner Kate Stovold and Solicitor Natasha Methven consider the practical consequences of the new rules and today’s introduction of no-fault divorce.
From today, 6 April 2022, there will no longer be a requirement to provide a ‘fact’ (reason) for divorce. Instead, there is a sole requirement to provide a statement of irretrievable breakdown of the marriage. Parties can apply jointly or separately and there will be no ability to defend the decision to divorce.
(For further information on the abolition of fault in divorce, please see Ending the Blame Game drafted by Cara Lahnstein.)
It is hoped the introduction of no-fault divorce will streamline the process, making it simpler and with less room for delay. Legal jargon has been updated to make the language more user-friendly, so:
- Petition becomes Application;
- Petitioner becomes Applicant;
- Decree Nisi becomes Conditional Order; and
- Decree Absolute becomes Final Order.
There will be a new minimum overall timeframe of six months (26 weeks) between the start of the proceedings (when the Court issues the Application) and when a Final Order is made. The Applicant(s) can only apply for a Conditional Order after 20 weeks. This ensures there is a period of reflection that offers time for couples to agree the practical arrangements for the future. We can assist with those arrangements, whether financial and/or in relation to the children.
What are the key considerations of the new no-fault based process?
How do you issue your Application?
The introduction of no-fault divorce brings with it a changed Application. On your behalf, we can prepare the paperwork and issue it via the online portal. If one solicitor is going to file the Application for both parties, a paper process must be adopted.
Either way, and as your legal representative, we take away the stress and worry of the paperwork.
There is a Court fee of £593. If the Application is submitted online, ‘Applicant 1’ shall pay the fee.
Will you be issuing alone or jointly with your spouse?
Sole Applicants will not be able to change their application to a joint one, so the decision on whether to apply solely or jointly with the other party must be made from the start. We can discuss these options with you.
What if your Application is urgent?
There should be an exceptional reason for the Application to be processed urgently. These reasons should be set out in a covering letter submitted to the Court alongside the Application. We can discuss what may or may not be ‘urgent’ and assist in persuading the Court with a carefully drafted letter.
Can you withdraw your Application?
Yes; there is specific paperwork for this purpose to recognise that you may change your mind. A sole Applicant may withdraw at any time before the other party has been served and does so by giving notice in writing to the Court. If a joint Application, the withdrawal must also be joint.
How is the Application served on your spouse?
The general rule is that the Court will send the Application to the Respondent, although the option for service via your solicitor is available upon request.
The rules about service are strict and it is important for the smooth running of the process that service is effected quickly and correctly.
What if you issue a joint Application and then your spouse later reneges on the process?
Joint Applications can continue as sole Applications at Conditional Order stage. If the Conditional Order has been granted, there is a specific form to be used that enables a sole Applicant to apply for Final Order following a joint Application.
Can you claim costs from your spouse in the Application?
There is no longer an option to apply for costs within the new style Application. However, a separation Application for costs can be filed. We can advise about that.
Behind the scenes, the parties can agree how the Court fee of £593 can be funded / divided.
Can my spouse still dispute the application?
The ability to challenge a divorce on the basis that the factual grounds are inaccurate no longer exists. You can no longer ‘defend’ a divorce, but it can be ‘disputed’.
Disputed cases arise when:
- An answer is filed disputing the validity of the marriage (for example, if the parties have not entered into a legally valid marriage);
- An answer is filed disputing the jurisdiction to entertain proceedings (for example, if neither party lives or has any other connection with England and Wales);
- The marriage or civil partnership has been dissolved (for example, if the marriage has already been brought to an end in proceedings outside England and Wales); or
- There is a pending cross-application for divorce.
Disputing an Application requires an offline process about which the team at LMP can advise further, to include ensuring that the timetable is strictly followed.
What if my Application for a Conditional or Final Order is urgent?
Urgent Applications for a Conditional Order or Final Order must be made offline on paper and lodged by email. Again, we can assist to ensure that the paperwork is filed correctly and on time. When time is of the essence, we enjoy working with clients to ensure that urgent matters are handled sensitively and expediently.
Whether you are looking to instruct a lawyer to deal with the divorce process for you, or are dealing with it yourself and have any questions regarding the introduction of the new regime, LMP are on hand to assist with your queries.
LMP supports the government’s approach to family justice – avoiding conflict wherever possible and reducing its damaging effect on families, and children in particular.
With enquiries, please contact Kate or Natasha or any member of the LMP team.
(N.B. This article only addresses the impact of the changes on divorce. For questions on judicial separation and nullity proceedings, please contact a member of the LMP team.)