No-Fault Divorce introduced in England and Wales

The biggest reform of divorce law since 1973 has come into force today. Couples will no longer have to separate for two years or allocate blame to one party to legally end their marriage. Amy Walpole, Partner and Head of Family Law at Hatch Brenner Solicitors in Norwich explores what the change will mean for separating couples in England and Wales.

No-Fault Divorce what does this mean?

No longer will there be a need to satisfy the court of conduct or separation facts in order to divorce. The court will accept a statement of irretrievable breakdown as conclusive evidence the marriage has broken down irretrievably. Previously, to achieve divorce one party would have to satisfy at least one of five reasons to support the divorce from their spouse.

1. Adultery
2. Unreasonable behaviour
3. Desertion
4. Two years’ separation with consent
5. Five years’ separation without consent

This divorce reform will allow separating parties, who believe their marriage has run its course and do not wish to conduct their divorce with blame or conflict, to do so. Couples will be able to deal with separation and divorce in a civil manner, without allegations or blame against one another.

Can I defend a no-fault divorce/dissolution?

A Respondent will not be able to defend a no-fault divorce or dissolution, save on limited factors such as jurisdiction, fraud and validity.

New Terminology

• Divorce Petition now Divorce application.
• Decree Nisi now conditional order.
• Decree Absolute now Final Order.

Procedure

Applications for divorce on a no-fault basis can be made by one spouse or as a joint application. Joint applications can proceed on a sole basis at any stage, should one party feel the other is delaying matters.

It is important if one party wants to delay the making of a final order pending a financial settlement being agreed, that they apply under s.10(3) Matrimonial Causes Act. The Court must not make the order final unless it is satisfied;

• a) The applicant should not be required to make any financial provision of the respondent,
• b) The financial provision made by the applicant for the respondent is fair and reasonable in the circumstances of the case.

Will no-fault divorces make the process quicker?

The timeframe for a divorce is difficult to predict, however, choosing a no-fault divorce does not necessarily make proceedings complete more quickly. The new divorce law introduces a mandatory minimum period of 20 weeks from the start of proceedings (the date the court receives the divorce application) to the confirmation to the court that a conditional divorce/dissolution is sought. Thereafter, 6 weeks must lapse before the conditional order can be made final.

Overall, no-fault divorces will simplify the process but will not make the process quicker.

What is the new process?

• One spouse, or both parties jointly, can make an application to the court for divorce based on an irretrievable breakdown of the marriage. The 20 week ‘period of reflection begins’.
• Serve application on respondent within 28 days with acknowledgement of service and notice of proceedings. In the case of joint applications, both parties will be served with notice of proceedings and both parties must acknowledge receipt.
• Within 14 days of service the respondent must file an acknowledgement of service.
• If a respondent intends to defend proceedings an answer must be filed and served within 21 days from the date on which the acknowledgement of service was required to be filed.
• In divorce/dissolution confirm to court wish to proceed to conditional order, accompanied by a statement in support. This can be applied for any time after the 20 weeks from the start of proceedings (date of application, not service).
• The making of the final order can happen 6 weeks from the making of the conditional order. The court will make the final order if satisfied no application to prevent the conditional order being made final is pending, and the provisions of s.10(2) MCA 1973 do not apply.

Within the 20-week period, arrangements can be made to agree on issues including the division of finances, lump-sum payments, property transfers/sales, pensions and arrangements for the children.

Why no-fault divorce may not be suitable?

Many clients do not want to assign blame for the breakdown of a marriage. However, there are people who will wish to recognise why the marriage has broken down because of the way the other party behaved.

No-fault divorce paves the way for an amicable end to a marriage, however, there are lots of issues to consider and finding the right legal advice is integral.

Contact Amy Walpole, Partner and Head of Family Law at Hatch Brenner Solicitors or any other member of our family law team to discuss your situation. Email [email protected] or call 01603 214 220.