No-fault divorce law: the biggest reform of divorce laws in half a century

After years of campaigning by family lawyers, no-fault divorce is finally here. The Divorce, Dissolution and Separation Act 2020 comes into effect on 6 April 2022 representing the biggest reform of divorce laws in half a century. The aim of the Act is to reduce the impact that conflict and allegations of blame can have on families and, in particular, on any children of the family.

What does no-fault divorce mean for me if I want to issue divorce proceedings?

Up until 31 March 2022 you may still file a divorce application on the basis of the old law. In this application you have to prove your marriage has broken down by relying on the fact of your ex-partner’s unreasonable behaviour or adultery, on the basis of you having been separated for 2 or 5 years, or due to desertion. The process for existing proceedings will remain the same even after 6 April 2022, provided the application is issued before 31 March 2022.

From 6 April 2022 you can file a divorce application simply stating that your marriage or civil partnership has broken down without having to prove this fact. The possibility of defending a divorce is to be removed. This is a welcome change for all those within toxic or abusive relationships that are attempting to take back control of their lives via divorce and ensures domestic abusers may no longer seek to retain coercive control over their victim.

For the first time, a divorce application may be filed jointly by both parties to the marriage or civil partnership as well as by either party. This supports the removal of the stigma that one party is divorcing the other and assists parties in remaining amicable throughout the process. The changes will encourage parties to work together collaboratively to resolve the issues that arise on separation, with both parties approving the divorce application before it is filed at court.

What are the changes to the divorce process?

Once the divorce application has been issued by the court, the next steps will depend on whether it is a sole or joint application:

• Sole application: It will be served on the other party by email. Notification will also be sent by post to the other party’s address confirming the website they need to access to view the divorce application. The other party will have 14 days to file an acknowledgement of service at court.
• Joint application: There is no need for the application to be served on the other party. Instead, the court will send a copy of the notice of proceedings to both parties. Each applicant must acknowledge receipt of the notice of proceedings within 14 days.

There will then be a minimum 20-week period before the applicant(s) may apply to the court for a conditional order of divorce or dissolution. The purpose of this period is to give both parties time to reflect on the decision to proceed with the divorce. It also gives them time to  try and resolve arrangements regarding financial and children matters. On a joint application, both parties can apply for a conditional order or one applicant may do so, providing a copy of the application is sent to the other party.

Once the conditional order of divorce or dissolution has been made, applicant(s) may apply for the order to be made final after a further 6 weeks. On a joint application, both parties can apply for the final order or one application may apply, giving the other party 14 days’ notice.

In exceptional circumstances (such as terminal illness or imminent birth of a child to one of the parties), an urgent application may be made to have this process expedited. Evidence will need to be presented to the court in support of an urgent application.

In what circumstances can a no-fault divorce be defended, if at all?

The other party is unable to dispute whether the marriage has broken down. This is considered a fact by virtue of a divorce application being filed at court by one party.

The other party can only dispute the divorce application in three unique circumstances:

• They dispute the jurisdiction of the court in England and Wales to conduct the proceedings. For example, where neither party lives in or has any other connection with England and Wales;
• They dispute the validity of the marriage or civil partnership. For example, if the parties have not entered into a legally valid marriage; or
• The marriage or civil partnership has already been legally ended. For example, if the marriage has already been brought to an end in proceedings outside of England and Wales.

Who pays the costs of a no-fault divorce?

Up until 31 March 2022 under the existing process you can seek an order for costs against the blamed party if proceedings are based on adultery, unreasonable behaviour or desertion. This is usually granted.

From 6 April 2022 parties can agree between themselves who will pay the court fee and any solicitor’s costs. If the payment of costs cannot be agreed, any party may be heard by the court on any question on costs, before the conditional order is made final. The party applying for costs will need to pay a further court fee and will need to set out the grounds on which the costs order is sought and the sum sought.

The other party may object to a costs order and will within 14 days need to file at court a witness statement confirming the grounds on which the application for costs is opposed. The court will usually deal with the application on paper, without the need for a court hearing. The difficulty envisaged with the new costs claim process is that a party’s costs of applying for a costs order may far outweigh the costs of the divorce application itself. Whether or not to seek costs from the other party should therefore be considered carefully with advice from your solicitor.

Further information and support

For help with any questions about divorce, please contact the Brachers Family team or get started with our simple online tool to receive tailored information about the issues you need to consider.

Take a look at our animation on no-fault divorce below.

This content is correct at time of publication