On 6th April 2022, law of divorce in England and Wales underwent a fundamental shift to a ‘no fault’ system that is the result of 50 years of campaigning.
The previous fault-based system pitted couples who were already experiencing issues against one another, requiring them to engage in a ‘blame game’ instead of separating quickly and as amicably as they possibly can.
Previously, around 75% of applications going through the Courts were based on fault. This required one party to cite examples of behaviour, adultery or desertion by the other party and give a description of what has happened within the marriage.
However, the reality for many separating couples is that they have simply grown apart and finding fault to rely on presents a logistical challenge. Seeing private aspects of family life set out in a form to be dealt with by lawyers and Court officials could be distressing. For many, listing examples of behaviour by one party led to a feeling of blame which virtually every family law practitioner will tell you only served to slow down the process, making it more stressful and costly for those involved.
Fault free divorce and new online divorce portal
From 6th April 2022, this is no more. Originally passed by Parliament in June 2020, the Divorce, Dissolution and Separation Act 2020 introduces a new system of divorce that is entirely fault-free. At the same time, procedure and terminology is being revamped to become more user-friendly and a new online portal will – the government hopes – make paper applications a thing of the past in all but a few rare cases.
Instead of requiring one party to give evidence of fault on the part of the other or a lengthy period of separation not less than two years, a declaration that the marriage has broken down irretrievably will be given by simply ticking a box on the application form.
Joint application for divorce
Perhaps even more revolutionary is that separating couples will have the option to apply jointly if the divorce is consensual. While it will be possible for a joint application to be converted to a sole one if amicable relations deteriorate, it will not be possible to convert a sole application to a joint one after the process has started.
It will now also be possible for a couple to use one solicitor, though this is not without its pitfalls. A paper application will be required for now, which could be slower than the online process, and when it comes to resolving finances or matters relating to children, separate solicitors may then have to be instructed. It remains to be seen how many solicitors, in practice, will be able to act as the joint solicitor due to these strict rules about potential conflicts of interests over the financial matters or arrangements for the children.
The changes have not been without criticism and, just as there have been many groups campaigning for the introduction of the no fault system, there have also been calls to keep the system as it was, or even to make it more challenging for couples to end their marriage. Perhaps to reassure campaigners on the more conservative side of the debate, the minimum length of time a divorce will take has increased to 26 weeks. The government has given clear indications this is intended to allow a period of reflection on the process and allow parties to call a halt to it if they feel it is no longer the right route for them. If they do choose to continue, the period of reflection is also intended to give sufficient time to agree practical arrangements for finances and children after the process is complete.
The process has been taking around 26 weeks, often significantly longer over the past few years due to pressures on the Court system, so the impact of the reflection period is likely to be limited in practice.
The government has also given a clear indication on what it perceives to be a fundamental shortcoming of the previous system of divorce: the ability to harness it as a tool for domestic abuse, usually by delaying or trying to block the divorce altogether, known as ‘defending’ under the old system and ‘disputing’ under the new one. The reasons on which a defence can be based have been severely curtailed under the new system. Disputes will now focus on technical aspects like jurisdiction, validity of the marriage, fraud and procedure. These are things which, in the vast majority of cases, can be determined by a Court fairly quickly.
Divorce and dissolution of civil partnerships
The move to a no fault system also means divorce and civil partnership applications will now be based on identical criteria, eliminating a controversial difference which meant the options for ending a civil partnership were fewer than for a divorce.
Cases involving judicial separation will also be permitted to use joint applications though this is not going to be the case for annulment applications.
How we can help you
These changes have been long awaited by family law practitioners. Furley Page’s Family Law team are all members of Resolution* and so are committed to helping clients find their way through the divorce process as constructively as possible. We welcome these changes and are excited about the benefits they will bring to our clients and to all separating couples.
Our Family Law team has a wealth of expertise in all aspects of matrimonial law including divorce, dissolution of civil partnerships, applications for judicial separation and annulment. Should you wish to discuss your situation and what the changes in the law mean for you, please telephone 01227 763939 for assistance.
Resolution members are committed to a Code of Practice, promoting a constructive approach to family issues that considers the needs of the whole family.