April 2022 saw the biggest shake up in almost 50 years to the process of divorce, as the Divorce, Dissolution and Separation Act 2020 (the DDSA) came into force.
Why did the rules change?
Under the previous rules, unless parties had been separated for a period of at least two years, there was a need to cite adultery or behaviour to proceed with a divorce petition. This requirement often saw blame attributed when it was not necessary, often caused unnecessary tension and acrimony between a couple and then led to avoidable increased legal costs.
The aim of the new process is to reduce the opportunity for conflict when a relationship breaks down, a person being able to start a no-fault divorce without the need to attribute blame. A further welcome feature of the new divorce process is the ability of a married couple to make a joint application.
It is anticipated that a no-fault approach to divorce will enable couples to give improved focus to issues arising from their relationship breakdown in a much more collaborative and constructive way, particularly when it comes to resolving arrangements for their children and in addressing the financial aspects of their separation.
What is no-fault divorce
There is no change in the ground for divorce, ie there must be irretrievable breakdown of the marriage, but instead of this being evidenced by one of the existing five facts, (adultery, behaviour, desertion, two years’ separation with consent or five years’ separation) all that is now required is ‘a statement that the marriage has broken down irretrievably’. The court must accept this as conclusive evidence that the marriage has broken down irretrievably.
Unlike under the previous rules, a respondent cannot contest the applicant’s decision to bring the marriage to an end and there are no facts to dispute. This is a significant shift and now the process will only allow a respondent to challenge the divorce in limited circumstances none of which relate to the actual breakdown of the marriage. For example, where there is a lack of jurisdiction, the validity of the marriage is in dispute or there is some other procedural non-compliance.
How are divorce proceedings started?
In broad terms the new no-fault divorce process is as follows:
- One or both parties provide a legal statement to the court confirming that the marriage has broken down (the application).
- The court will usually be responsible for service of the application and if possible, it will do this via email. The court will also need to send a notice of confirmation to the respondent’s postal address.
- The respondent needs to reply to the application within 14 days.
- There must be a period of reflection of 20 weeks from the date the proceedings started before the conditional order for divorce can be made.
- A further period of six weeks and one day (43 days) must elapse after pronouncement of the conditional order, before the applicant can apply for a final order. A final order ends the marriage.
Is there new terminology?
There is a fresh approach to the terminology that will used in the no-fault divorce process.
Petitioner is now Applicant
Divorce Petition is now Application
Decree Nisi is now Conditional Order
Decree Absolute is now Final Order
Decree of Divorce is now Divorce Order
Defended Proceedings is now Disputed Proceedings
Undefended Proceedings is now Standard Case
How have legal costs been affected?
Costs will vary depending on whether you are legally represented and/or whether you can obtain any help with your legal fees. For further details of those fees charged by Johnson and Boon visit our Divorce services page or else contact us using the information below.
If you are on a low income or unemployed you may be able to use the Help With Fees Scheme – Form EX160: Apply for help with court and tribunal fees – GOV.UK (www.gov.uk)
In some circumstances, you may be eligible for legal aid. To ascertain if you are eligible, you can check online via this link – Check if you can get legal aid – GOV.UK (www.gov.uk)
Help with Fees will only be available on a joint application where you both have limited savings and either get certain benefits or have a low income. If this only applies to one party, then Help with Fees will not be available unless you issue a sole application.
There is currently a court fee of £593 paid to the court when the divorce application is made.
The ability to pursue costs under the new no-fault divorce process is now likely to be much more difficult, particularly in a standard case. This is primarily because the purpose of the new procedure is to remove blame and conflict so that there is co-operation and a conciliatory approach.
How can we help?
If you would like advise on a divorce matter get in touch with our team of experts by emailing email@example.com, calling 0151 637 2034 or by booking an appointment through our free mobile app, available to download on both Apple and Android app stores.