In this article Alexander Garrett, specialist divorce solicitor at Holmes & Hills explores the changes introduced by the new no-fault divorce option.
After years of discussion and debate, no-fault divorce is here.
On 6th April 2022, we saw the most significant change to the divorce process since 1973 as the process of divorce changed to allow for a no-fault divorce. We have confirmation that the below procedural changes have been brought to the Divorce, Dissolution, and Separation Act 2020:
The above changes have been, overall, well received and it is apparent that the changes are geared towards encouraging parties to divorce on an amicable basis. I can certainly see the removal of conduct as a positive step forward to achieving this.
Taking a deeper dive into these changes, in particular, I note as follows:
I have never been a fan of the way the current procedure is set up, if a party is relying on the fact of unreasonable behaviour or adultery, they are almost always starting the process of divorce on the wrong foot.
If a party begins by making allegations against their spouse, most of the time this will lead to some form of conflict. It is then very hard to expect both parties to sit down and discuss other areas of the separation (such as child arrangements or a financial settlement) in an amicable fashion. Usually, by then, the ability to sit down and have sensible discussions are lost and matters tend to escalate from there.
In this day and age, a divorce should not be about blame. In instances of divorce, if a married couple has reached the conclusion that their marriage has broken down beyond any point of retrieve, that is all that should be relevant. In removing the element of blame it takes the focus away from “who is responsible for this?” and places a greater focus on the more important aspects of separation such as, “how are we going to split the finances of our marriage and what is the best arrangement for the children?”
Perhaps the most significant change is the removal of a spouse’s ability to defend a divorce.
I was never a great fan of the word “defend” as, by contrast, it implies that the person applying for the divorce is “attacking” the marriage.
I believe this change is going to see the greatest reduction in unnecessary costs being incurred by the parties and we should see timescales halve as a result.
Interestingly, a person can still dispute a case, albeit on grounds limited to the validity or subsistence of the marriage/ civil partnership or the jurisdiction of the court to entertain proceedings.
Another sign of the courts encouraging parties to approach proceedings in an amicable fashion can be seen by introducing the ability to make joint applications for a divorce. Parties will no longer need to feel that one person is divorcing the other person, and this allows for both parties to take the step of divorce jointly. By encouraging this from the start, the parties can then feel able to adopt a similar approach in respect of the other aspects of separation such as arranging the care for the children and having more reasonable expectations for the settlement of finances. The process of divorce no longer has to feel like a dispute of one party against the other but more of a joint, collaborative process working in the best interests of both parties.
The court is also introducing some consistency in respect of the timescales of divorce by including a new “minimum period” of 20 weeks between the start of proceedings (when the court issues a divorce application) and when the parties may apply for a Conditional Order. There is still to be a further 6 week waiting period before a party can apply to conclude the divorce by way of a Final Order. Provided that parties can resolve financial matters within this timeframe, it presents a clear expectation as to how long a divorce is likely to take which will help family lawyers advise their clients from the first meeting.
In time gone by a particularly difficult respondent with a view of delaying proceedings as much as possible may have tried to delay matters at the point of receiving the Acknowledgement of Service. Having the period start from the issuing of a divorce application allows for a far more structured way of proceedings moving in the right direction.
Much of our vocabulary will finally be given an update. Key terms that we know will now be changed are as follows:
There are concerns however, that this may see the rates of divorce increase, as the removal of the need to prove the breakdown of the marriage may mean couples will be less inclined to try and make compromises in order to make their marriage work. This, however, remains to be seen.
Overall, the changes are certainly very encouraging and it is clear that they will encourage people to separate on a far more amicable basis which presents a host of benefits to both parties.
At Holmes & Hills Solicitors, we have Resolution trained lawyers that prescribe to a code of practice designed to achieve amicable divorces and financial settlements.
If you would like advice or assistance in applying for a no-fault divorce or discussions relating to child arrangements and financial settlements, feel free to contact us on 01206 593933 to book a fixed fee initial consultation with one of our specialist family lawyers.
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