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Janet Raeburn

Partner - East Sussex (Uckfield)

26th April 2022

No Fault Divorce Commences April 2022

As the law in England and Wales previously stood, if two spouses wished to divorce prior to being separated for two years, then it was necessary for one to allege adultery or unreasonable behaviour against the other. This inevitably resulted in one party either (a) making allegations against the other, causing increased animosity and making settlement of financial and/or children matters more difficult, or (b) both parties having to wait until they had been separated for two years before even commencing divorce proceedings.

Given the above position, a change in the divorce laws allowing for a ‘no fault’ divorce has long been campaigned for. The general consensus amongst legal professionals was that if a marriage has irretrievably broken down and the parties wish to divorce, they should be permitted to without requiring them to wait for two years separation, or requiring one of the parties to effectively blame the other for the marriage breakdown.

On 6 April 2022 the Divorce, Dissolution and Separation Act 2020 finally took effect, introducing no fault divorce into law in England and Wales. As the new no fault divorce regime has only just been introduced it is yet to be seen exactly how the process will work.

The key elements of the new process are as follows:

  • The new no fault divorce laws will apply to all divorces commenced on or after 6 April 2022.
  • The new divorce process has been streamlined and simplified with a view to making it more straightforward and accessible than before.
  • The terminology has changed with divorce application, conditional order and final order taking the place of divorce petition, decree nisi and decree absolute.
  • Divorce applications can be made individually or jointly.
  • The only ground for divorce remains that of irretrievable breakdown of the marriage, although this can be evidenced by a simple statement of breakdown.
  • There is no need to be separated for a certain period of time or for allegations to be made about the other spouse’s behaviour, avoiding the need to cast blame.
  • A party cannot defend the divorce on the basis that they do not consider the marriage to have broken down – this recognises that the marriage is over if one party maintains that this is the case.
  • A divorce will take a minimum of 26 weeks to conclude with a period of 20 weeks required from application to conditional order, and a further 6 weeks from conditional order to final order.
  • Costs orders are not to be expected and in fact require a separate application. It is envisaged that costs orders will generally only be made where there has been litigation misconduct eg. where the respondent has sought to evade service/delay proceedings leading to additional costs being incurred.

As solicitors we have seen the negative impact that the previous divorce regime has often had on divorcing couples and their families. We consider the change to the divorce laws to be a very positive step, which should assist parties in trying to resolve matters in an amicable and cost-effective manner following the breakdown of their marriage.

Whilst the new divorce process is intended to be simpler to make it easier for couples to get divorced themselves when their marriage has irretrievably broken down, the fact is that there are almost always other matters that also need to be resolved such as financial and/or children matters. There are also certain rights that can be lost when couples get divorced, which they may not be aware of. For this reason, we would always recommend that individuals seek independent legal advice at an early stage when considering proceeding with a divorce.

We are here to help

We understand that it is often at a very difficult time in a person’s life when they need a family solicitor. If you would like further information regarding a no fault divorce, or if you require general advice and assistance, please contact Janet Raeburn, Family Law Partner, on e. janetraeburn@rixandkay.co.uk or t. 01825 744482.