On 6 April 2022, the law and procedure for getting a divorce or civil partnership dissolution changed completely.
Before 6 April 2022, someone applying for a divorce had to “prove” that their marriage was over by relying on either adultery, "unreasonable behaviour", separation, or desertion. This system increased conflict between a separating couple, making an agreement on parenting or financial settlement more difficult even when couples were trying to be amicable.
After 6 April 2022, someone applying for a divorce will have to sign a simple statement that their marriage has broken down, followed by a 20 week waiting period before being able to progress their divorce by applying for an interim divorce order called a conditional order (a decree nisi under the pre-6 April 2022 system). Six weeks and one day later, the applicant can then apply for the final divorce order (a decree absolute under the old system).
There have also been changes to the terminology used in the divorce process to make it simpler and easier to understand. For example, a divorce petition will become a divorce application and the decree nisi and decree absolute will instead be called conditional order and final order.
A fundamental change is that for the first time in England and Wales it will also be possible for a couple to apply for a divorce or dissolution jointly.
Our experience in no fault divorce
This is the most fundamental change in divorce law for 50 years and is the culmination of a campaign in which our family team has played a leading part.
Our divorce and children lawyers are passionate about taking the heat out of a divorce. We promote out of court options such as mediation, collaborative divorce and arbitration whenever we can.
All of our family lawyers are members of Resolution which promotes a constructive approach to separation and divorce. When Nigel Shepherd, our Head of Family Law at that time and long-time campaigner for no fault divorce, was national chair of the organisation in 2018, Mills & Reeve represented Resolution in the Supreme Court in the hugely influential case of Owens v Owens. This case was a key reason behind this long overdue change in the divorce laws.
FAQs
No fault divorce came into force on 6 April 2022.
The new process involves a "statement of breakdown" at the beginning by one or both of the couple followed by a minimum waiting period of 20 weeks. After 20 weeks, the interim divorce order can be applied for. Six weeks and one day after the conditional order has been made, the final divorce order can be applied for. However, many couples will want to hold back on applying for the final order until they have agreed their financial settlement for reasons that your family lawyer will be able to discuss with you.
Yes. Everyone will have to wait the minimum period of 26 weeks from the beginning of the divorce until the final order.
Up until 6 April 2022, to apply for a divorce or dissolution, a spouse had to prove to the court that the marriage had irretrievably broken down. They had to do this by proving one of five so-called "facts":
- That the other spouse had committed adultery (although this was not an option for civil partnership dissolutions) and they found it intolerable to continue living with them.
- That the other spouse had behaved in such a way that they could not reasonably have been expected to live with them.
- That the other spouse had deserted them for at least two 2 years.
- That the couple had been separated for at least 2 years and both agreed to the divorce.
- That the couple had been separated for 5 years.
The facts meant that the only way to proceed with a divorce immediately was to rely on either adultery or behaviour. Inevitably, this meant that hostility between a couple was heightened from the outset as both of these require one spouse to blame the other. This was required even if the parties mutually agreed that the relationship was over or simply felt that their marriage had come to an end through no fault of either of them.
The new law brings into effect "no fault" divorce by removing the five facts completely. Instead, the application for divorce now only requires confirmation that the marriage has broken down irretrievably. This can be provided by one spouse or by the couple together (we will be covering the topic of joint applications in a separate blog). The court must take this statement as conclusive evidence that the marriage has irretrievably broken down. The court is no longer interested in how the marriage broke down, only that it has.
Divorce can be difficult enough. By removing the five facts and the need for couples to attribute blame, it is hoped that couples will be better placed to focus on and agree arrangements for their children or finances.
One of the biggest changes that took effect on 6 April was the introduction of joint applications for divorce. If you and your ex decide to separate you will be able to divorce together, as joint applicants, rather than one of you having to make an application for divorce or civil partnership dissolution against the other.
It is hoped that this co-operative process will encourage more amicable legal separations - a core aim of the "no fault" reforms.
You and your ex complete the application form together. The form is simple and can be done online. You must also upload a copy of your marriage certificate and pay a court fee (currently £593). It is not possible to split the fee between you and your ex when you pay the court - whoever you name as "Applicant 1" has to make the payment. You and your ex should decide between yourselves if or how you will share the cost.
The court then issues the application. You and your ex will need to confirm receipt of the proceedings within 14 days of receiving your issued application back from the court. If you applied online, this can also be done online.
You and your ex can apply together for a conditional order from 20 weeks after the application is issued. The conditional order is the interim or first divorce order. It used to be called the decree nisi. You are not divorced at this stage but if you and your ex have agreed a financial settlement, once you have your conditional order, you can send your agreement to the court to be approved by a judge.
It is possible for just one of you to apply for the conditional order - this might be necessary if your ex is no longer cooperating with the process. If you decide to do this, your application for a conditional order will be sent to your ex so they know what is happening. You then become the applicant and they become the respondent.
Watch out - once a joint application for divorce is progressed by just one of you it is not possible to switch back to a joint application later. This doesn’t change overall timeframes, and doesn’t mean the "new" respondent can oppose the divorce, but it does shift responsibility onto the solo applicant.
After a joint application for a conditional order is reviewed by a judge it is pronounced in court. This is a procedural step and shows the judge is satisfied you are entitled to a divorce.
You and your ex must now wait six weeks and one day before applying, together, for a final order. This used to be called the decree absolute. You can still switch to a solo application at this stage and take this step by yourself. If you do so you must give your ex 14 days’ notice of your intention to apply for the final order. Once the application is received and reviewed by the court a final order will be made. The final order confirms your marriage (or civil partnership) is officially over.
You can still apply for divorce against your ex as a sole applicant. You will be called the applicant, and your ex the respondent. Rather than both of you acknowledging proceedings your ex will be sent a copy of your application (by default the court does this via email). They then have 14 days to send back to the court an acknowledgement of service which simply confirms to the court that they have received your divorce application and, in the vast majority of cases, that they are content for the divorce to proceed. In sole application cases, the applicant has responsibility for applying for the conditional order and the final order. In most other respects (for example, timeframes) the process is the same.
It is hoped removing fault from the legal process will set the stage for post-separation arrangements (for example, regarding finances or children) to be made more amicably.
However, you may feel strongly that your ex is at fault. Being able to tell a court why they believe their marriage or civil partnership broke down can enable someone to feel their voice has been heard. In the absence of this outlet, residual frustrations could negatively impact the tone of subsequent negotiations.
You might find it helpful to seek counselling, either alone or with your ex. A counsellor can work with you to help you understand and manage your feelings about their separation. Counselling has the advantage of being entirely separate to legal arrangements being made with the help of solicitors. Counsellors focus their efforts on the wellbeing of the individual(s) they are counselling.
In mediation a separated couple works with a neutral third-party mediator to consider the relationship breakdown with the aim of agreeing how to resolve resulting issues, such as arrangements for the care of any children. It is possible to discuss the impact of the separation, or one partner’s behaviour, as part of this process. However, unlike in counselling, this discussion should be in the context of moving forward and helping transition the couple’s relationship.
In some cases it may be as simple as ensuring you have a support network of people who are there to listen to you. It may be helpful to ask your solicitor whether a friend or family member can accompany you to meetings, or perhaps join a local support groups.
Vlogs
In this webinar, Mills & Reeve consultant Suzanne Kingston speaks with Ania Tarasiewicz and Tim Whitney (Mills & Reeve), Isabelle Rein Lescastereyres (bwg, Paris) and Geoff Wilson Hopgood (Ganim Lawyers, Brisbane) about the introduction of no fault divorce in England and Wales.
The law on how you can get divorced in England and Wales changed on 6 April 2022. In this vlog, Caitlin Jenkins, the familylawvlogger, and her colleague, Nigel Shepherd, discuss the changes that came into effect. They also discuss the background to the law change, including the academic research and key case law that prompted the change.
This vlog is a discussion between Caitlin Jenkins, the familylawvlogger, and her Mills & Reeve colleague, Nigel Shepherd, about the forthcoming changes to divorce law in England & Wales, including the introduction of no fault divorce.
All you need to know about the Government announcement on divorce reform in England & Wales in 2019.
This vlog, recorded in January 2020, is a conversation between Caitlin Jenkins, the familylawvlogger, and colleague Nigel Shepherd, former chair of Resolution, about the proposed changes to divorce law in England & Wales which are going through the UK Parliament. It provides an update to the vlog they recorded in May 2019, also on the familylawvlogger YouTube channel.
This vlog, recorded on 29 June 2020, is a discussion between Caitlin Jenkins, the famiylawvlogger, and her colleague, Nigel Shepherd. It's the latest in a series of updates on the no fault divorce legislation as it passes through Parliament, finally gaining Royal Assent on 25 June 2020. It examines the next stages for the legislation and considers when the changes to the law are likely to come into force and be able to be used by divorcing couples.
Get in touch
Our team of legal experts are here to support you. Contact one of our lawyers today.
