What is No Fault Divorce?
No fault divorce – on the 6th April 2022 the Divorce , Dissolution and Separation Act 2022 brought the new no fault divorce system into being.
The old system
Under the old system the only ground for divorce was that the marriage or civil partnership had irretrievably broken down and if you started divorce proceedings you would need to show that your husband or wife had either committed adultery, had behaved unreasonably towards you or you had been separated for either 2 years and your spouse consented to your divorce or 5 years without their consent. A final and rarely used fact was that of desertion. Divorces could also be defended.
The divorce proceedings were started by sending a “divorce petition” to the court. If you started proceedings against your husband or wife you were the Petitioner and they were the Respondent.
The new system
The new no fault divorce system came into effect on the 6th April 2022. Married couples can now divorce without blaming each other or proving separation or desertion. The aim is to reduce conflict and acrimony in the divorce process, which can be particularly damaging for the children of the family. It is also hoped that the length, cost and stresses of the divorce process can all be reduced. There is in fact no need to provide evidence that the marriage has broken down and if you are applying for a divorce you will need only to tick a box next to the words “I confirm that my marriage of civil partnership has broken down irretrievably”.
The main changes are
- Joint applications for divorce.
- The right to defend the divorce has been removed
- A timetable of 26 weeks that cannot be extended by the court
- other changes include service of the divorce application by the court and by email.
You still have to wait a year after the marriage to apply for your divorce.
Most divorces now use the online system for making divorce application. This can be found on the gov.uk website. If you are acting without a divorce lawyer you can apply on paper using Form D8, which can also be found on gov.uk.
The changed language of divorce
Some terminology has changed so you will now be making a divorce application (not a divorce petition) and you will be known as the Applicant (not Petitioner). The terms “decree nisi” and “decree absolute” have been replaced by “conditional order” and “final order of divorce” respectively.
How do I make a sole application for no fault divorce?
- Once your draft sole application is finalised, it is submitted online to the court, together with a clear image of your marriage certificate (eg a scanned pdf) and the court fee.
- The court then issues the divorce application, which starts the divorce proceedings.
- Within 28 days the divorce application must be served on your husband or wife, who is still known as the Respondent.
- 14 days later the Respondent must file an “acknowledgement of service” to the court. The court will provide them with instructions on how to do this.
- After 20 weeks has elapsed from the date the divorce application was issued by the court, the conditional order (formerly decree nisi) can be applied for- this time span is to allow for a period of reflection. After a further 6 weeks and one day has passed, the final order (formerly decree absolute) can be applied for. Once you have a final order, you are divorced.
- The court will normally send the divorce application to the other side but you can request to do this via post and email to their usual personal (not work) email address or by arranging for them to be personally served with the divorce application by a third party such as a process server. You still cannot serve the Respondent personally.
Can I defend the divorce proceedings?
You can no longer defend a divorce and you cannot dispute whether the marriage has broken down but you can dispute the divorce on very narrow grounds. These are 1) jurisdiction, for example by claiming that the English court cannot deal with the divorce, 2) the validity of the marriage, for example if the original marriage ceremony was not recognised as a valid marriage ceremony by the law of the country in which the marriage took place, or 3) that the marriage has been legally ended already, for example a “Talaq” under Sharia law.
By 35 days from the date of service of the divorce application the Respondent must let the court know if he or she wishes to dispute the proceedings.
Can I make a joint application for divorce with my wife or husband?
Yes. Before issuing the joint application for divorce, the draft application is sent to your spouse or their divorce solicitors to check over and add any details that are necessary. The application is then sent back to you or your divorce solicitors to review any additions. The divorce solicitors for each applicant discuss the contents to avoid the draft divorce application going back and forth too often before it is sent to the Family Court.
When the joint application has been finalised, it is submitted to court together with a clear image of your original marriage certificate (eg. a scanned pdf) and the court fee.
On issuing the application, the court produces a notice of proceedings and emails and posts this to each applicant or to their divorce solicitors. Each applicant must acknowledge receipt of the notice of proceedings within 14 days from the application being issued.
20 weeks after the divorce application was issued, you and your spouse can apply for the first stage of the divorce order, called the conditional order. In the application for the conditional order, you must each confirm that you wish to proceed with the divorce, and disclose any changes that have occurred since the divorce application was sent to the court.
If one of you no longer wishes to apply for divorce or simply refuses to progress the divorce proceedings, the other applicant can make the application for a conditional order by themselves. The application then becomes a sole application and that applicant can then make the application for a final order of divorce. The other spouse is now called the Respondent from this stage of the divorce proceedings
Once six weeks and one day have passed from the day the conditional order was made, you and your spouse can apply for the final divorce order. This brings your marriage to an end, and you are then divorced.
Can I get the other side to pay my divorce costs?
Its early days but it seems like you wouldn’t normally be able to get an order that your husband or wife pays your divorce costs. Previously if you were divorcing someone on the grounds of their adultery or unreasonable behaviour then you would stand a reasonable chance of obtaining an order that they pay your costs, because both are blameworthy. However, as you are no longer allocating blame with a no fault divorce, it seems it would go against the idea of no fault divorce to claim or be awarded your divorce costs against your husband or wife. The exception might be if the you need to pay additional legal fees due to your spouse holding up the process, for example failure to send back an acknowledgment of service to the court.
How much will it cost?
There is currently a court fee of £593 and if you instruct Lincolns Family Law our fee will be £650 to take you from drafting the divorce application to your final order of divorce, including all correspondence with your spouse or their divorce solicitors. If you are in receipt of certain benefits you may be eligible for a reduction in your court fee. Lincolns Family Law are divorce lawyers in Sussex and have extensive experience and expertise in dealing with divorce. Discreet and confidential advice is just a phone call away.
The case of Owens v Owens
One of the cases that leading up to the switch to no fault divorce was Owens v Owens in 2018. The wife sent a divorce petition to the court based on her husband’s “unreasonable behaviour”. She alleged that his treatment of her caused her to be deprived of affection, that he was moody and argumentative, he had belittled her in public and had prioritised his work over their home life. As a result of his treatment she felt unhappy and they had grown apart. Her husband defended the case on the basis that his behaviour was not unreasonable. The wife was given permission to amend her divorce petition to show 27 examples of his unreasonable behaviour.
The Judge dismissed the wife’s divorce petition on the ground that the husbands behaviour was normal in a marriage. The wife appealed, and her divorce lawyers progressed her case to the Court of Appeal and then finally to the Supreme Court where she was told that the original judgement was correct. The wife had to wait until 2020 to divorce her husband in the grounds of 5 years separation (with no consent needed). The important thing is to remember is that had Mrs Owens been able to apply for a no fault divorce, the above situations could never have come about.