Family Law

It's (finally) the end of divorce as we know it...

An article by Kathryn Cassells, Associate

It's (finally) the end of divorce as we know it...

Farewell, adultery petitions. So long, unreasonable behaviour particulars. Adieu, decree nisi.

It’s time to say goodbye to the old way of divorcing!

After years of campaigning, no fault divorce is finally here. From 6 April 2022, a date hailed in the media as the “new divorce day”, couples will be able to apply for a divorce without blaming the other for the breakdown of the marriage or waiting years to apply on the basis of separation.

So, what do you need to know?

1.      New language of divorce

The language of divorce will become more user friendly and less archaic from April onwards. The ‘petitioner’ will become the ‘applicant’. The applicant will no longer lodge a ‘petition’, they will lodge an ‘application’. ‘Decree nisi’ (the first stage of the divorce) will become the ‘conditional order’ and Decree absolute (the second, and final stage, of the divorce) will become the ‘final order’. ‘Defended’ divorces will be ‘disputed’.

2.      Statement of irretrievable breakdown

There will no longer be a requirement to provide evidence of a ‘fact’ to show that the marriage has broken down irretrievably. Instead, the applicant/s need only to provide a statement of irretrievable breakdown. That will be considered sufficient evidence that the marriage is over.

3.      Ability to apply jointly

A decision needs to be taken from the outset as to whether the separating couple wishes to apply solely or jointly. When applying jointly, the parties will be referred to as ‘applicant 1’ and ‘applicant 2’. If one applicant drags their feet during the process, a joint application can be converted to a sole application.

4.      New service rules

The court will typically deal with service, but the applicant can choose to do so themselves. Keep in mind that the court will not serve internationally, so if the respondent is overseas the applicant will need to deal with service.

In bringing divorce to the 21st century, divorce applications will be served by email. Applicants are to include the ‘usual’ email address in the application and, where possible, avoid business email addresses. The court will then send the petition by email, and send a hard copy letter in the post confirming that the petition has been served by email.

There will also be a deadline for service of the petition: the application needs to be served on the respondent before midnight on the day 28 days after the petition is issued. There is scope to apply for an extension, for ‘good reason’.

5.      Disputing the divorce  

There are now limited grounds on which someone can dispute a divorce, including: jurisdiction, validity of marriage, already being divorced (following, say, an overseas divorce). Procedural issues and fraud will also be a reason to dispute the divorce.

6.      Costs

There’s no option to seek costs in the application itself. If an applicant wants to make an application for the costs of the divorce, a separate application will need to be made to the court.

7.      Timing

Whilst no fault divorce is likely to be more amicable, it will take longer to get to the first stage of the divorce. Applicant/s will need to wait 20 weeks before applying for the conditional order. Once the conditional order has been made, there will then be a 6 week and 1 day wait to apply for the final order.

Many divorcing couples hold off finalising the divorce until they have resolved the finances. This should remain standard practice unless there is an urgent reason for the divorce to be finalised, or safeguards are put in place to protect the parties’ financial position following final order.

It is hoped that removing the ‘fault’ element of divorce will set the right tone for divorcing couples from the outset. Rather than having to blame one party for the breakdown of the marriage, divorcing couples can instead focus on having constructive discussions on the financial and children arrangements following separation from the outset.

Please do get in touch if you’ve been affected by these issues and would like advice on your position. You can email Kathryn direct at kathryn.cassells@vklaw.co.uk or the team at info@vklaw.co.uk