No fault divorce: a cautionary tale

Nigel Winter

Nigel Winter

Partner

We have a new “no fault” divorce law (the Divorce, Dissolution, and Separation Act of 2020) and we have every reason to be optimistic.

A tremendous number of headlines have been generated by this good news. However, it’s wise to be patient, for here is a little-known secret; within the legal profession, and probably amongst the judiciary, there is not absolute certainty as to how a new law will operate. One thing’s for sure, it will be simpler and perhaps kinder than the old law.

The Twittersphere is awash with stories of people anticipating that the era of the acrimonious Court case is coming to an end, as the 20-week period from filing a new divorce application and applying for the first divorce order (now called a ‘conditional order’) allows for a “period of reflection” – this is to give the couple the opportunity to work through their differences before finally committing to the divorce. During this time, they will be able to address their children and finances and, hopefully, move forward. However, this 20-week period before a conditional order can be made cannot be extended, even if the respondent is served with the application later than 28 days after the court issues it, as set down in the rules. This may result in some respondents having considerably less than 20 weeks’ notice of the divorce proceedings. This might not only cause bad feeling between the spouses, but also financial loss.

Most revolutionary of all, under the new law, both parties can submit a joint application on mutual terms.

How to submit a joint divorce application

 
  1. Having reached an agreement that the marriage is at an end, you can decide who is the first applicant to complete that application. Your spouse then has the opportunity to complete and provide any additional details. Both of you will then sign a statement of truth.
  2. The Statement is then lodged with the Court and it is known as an Application for a Divorce Order. This confirms that the marriage has irretrievably broken down and the Court fee for this is £593.
  3. Thereafter, the Court starts the process and the 20-week “reflection period” commences.
  4. If after 20-weeks you wish to continue with your divorce, you inform the Court and apply for a conditional order.
  5. Six weeks after applying for the conditional order, the Court can grant the final order – this terminates the marriage.
During the process, if it transpires that you are unable to work together to progress the joint application, either of you can apply for a divorce as an individual – although, be warned, the 20-week reflection period will start running all over again as a sole applicant.

Potential issues with the no fault divorce


Most time is consumed by separating parties in dealing with their children and finances, something in which the “blame game” of old law invariably overflowed. Herein lies the main difficulty – you may still be in dispute. If that dispute is substantial, then a similar amount of time and expense could be consumed in deciding with whom your children shall live and how your finances will be distributed.  However, the great virtue of the new law, whatever else is said and however else it evolves, is that it does not commence with “blame”.

There is also no opportunity to defend the divorce. Whilst this is overall seen as a good thing, a respondent’s bargaining position is now significantly curtailed. It was typical under the old law for a respondent to promise not to defend a divorce if the (then) petitioner promised not to finalise the divorce until financial matters had been resolved (which otherwise can cause financial prejudice through loss of certain rights e.g. under a pension). However, this is no longer possible.

Cost orders are now a thing of the past. If the parties cannot reach agreement on how divorce costs should be met, the default position is that both parties pay their own divorce costs.

Many of these difficulties will be ironed out with the passage of time as Parliament now intends. However, at least we have got the new law – but that will be little consolation for those divorcees who are the victims of domestic violence (divorce is now merely a unilateral declaration that a marriage has irretrievably broken down), or the weaker financial party in ancillary relief proceedings. The impact for those is yet to be seen.

In terms of the process, this will be digital. We are already seeing a significant backlog in the court processing new divorce applications. Hopefully this situation will improve over time.

Conclusion


If you find yourself in the position of having waited for the new law to come into being before taking that next big step, then there is no reason to delay. The new law is far better equipped to deal with the realities of divorce than anything we have seen over half a century. Such “pitfalls” mentioned above are no more than a counterbalance to the unbridled joy understandably expressed in the majority of commentary and articles that have recently appeared.


For further advice and information, or if we can be of assistance regarding any other matrimonial or family matter, please contact our family team.

 

 

 



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