No-fault divorce – a smoother path?
Once you have decided that your relationship is over and you have taken the first step towards legally ending the relationship through divorce or dissolution of a civil partnership, most people would like to be able to complete the formalities as quickly and smoothly as possible. However, historic laws meant that the process could often be confrontational and one partner could refuse to cooperate.
Such was the situation in the recent case of Owens v Owens where the argument centred on whether Mr Owens had behaved in such a manner that it was unreasonable to expect his wife to continue to live with him. The Court found that his behaviour did not meet the legal standard for unreasonableness, and the only option for Mrs Owens was to wait until they had been separated for five years. Mrs Owens could not get a divorce sooner without proving that her partner was at fault, as he did not agree to the divorce.
Following changes to the law in April 2022 couples are now able to apply for a no-fault divorce in England and Wales. This is very welcome news for many who seek a divorce without having to point the finger of blame at their former spouse
Under previous rules, you could only obtain a divorce if the marriage had broken down irretrievably and you could prove this by demonstrating your partner was at fault because of adultery, unreasonable behaviour, or desertion. Alternatively, if you both agreed, then you could divorce after two years of separation.
What has changed?
The old laws have been replaced with a new law, meaning you are now able to apply for divorce by simply citing that the marriage has broken down irretrievably. It is no longer necessary to wait years, or to have to blame your former spouse.
If you both agree to divorce
Under the new law you can apply for your divorce jointly. Both of you can give notice to the Court and sign, as part of your application, a joint declaration confirming the irretrievable breakdown of your marriage.
If one spouse disagrees
Either of you can give notice to Court and sign a declaration as part of your application that the marriage has broken down irretrievably. It is no longer necessary for your spouse to agree to, or to sign, the declaration. Your application must then be sent to your spouse.
There have also been some changes in the terminology used for all divorces under the new law:
- the ‘petitioner’ is now known as the ‘applicant’;
- the ‘decree nisi’ which is the first court order of your divorce has been replaced and is now called a ‘conditional order’; and
- the ‘decree absolute’ which is the last court order, and the one that actually dissolves your marriage has been replaced with ‘final order’.
Removal of objections
Finally, there is now less ability to defend a divorce. Defending a divorce is now only possible on very limited grounds, such as objecting to the validity of the marriage, or objecting to the Court having jurisdiction.
Is this a quickie divorce?
The changes include a 20-week cooling off period to provide an opportunity to change your mind, between having applied for your divorce and before the conditional order is made.
After the conditional order has been made, you must wait a further six weeks to obtain your final order. Bearing this in mind, it will not necessarily be a ‘quickie divorce’ but is certainly quicker than waiting two or five years.
Eliminating the need to find fault will undoubtedly speed matters up in some cases and will reduce potential conflict.
For many, divorce does not stop the need to communicate with your former spouse especially when you have children together. Having a less contentious divorce should help to maintain better relations and communications which will ultimately benefit everyone. It can greatly assist children to come to terms with their new life, if they can see their parents communicating amicably.
The benefits also include keeping costs down and saving on court time. Under the old rules, a defended divorce was often expensive and timely. Mr and Mrs Owens spent a significant amount of time and money on their legal battle. The new rules mean defended divorces will become almost unheard of.
It is important to note that in most cases the lion’s share of legal costs arises in relation to disputes over the financial separation rather than the actual divorce.
Civil partnerships move online
The new changes have also brought the ability for civil partners to be able to apply to the Court for the dissolution of their civil partnership online. Previously civil partners were forced to make paper applications to their regional divorce centre. Often these centres are understaffed and plagued with delays.
The new law allows for civil partnership dissolutions to move online just as divorce petitions have done. This means a much quicker process for ending a civil partnership than what we currently have now but civil partners are still bound by the new 20 week cooling off period and the need to wait 6 weeks between conditional order and final order.
How we can help
Every couple is unique, and our family lawyers will explain and discuss the options with you so that you can evaluate the best way forward. For further information, please get in touch with our family team.
Katherine Parker is a solicitor in the Family Department at Barker Gotelee Solicitors in Ipswich.
Suffolk Family Solicitors – for more information on our range of legal services, please call the team on 01473 611211 or email firstname.lastname@example.org
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.