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“No-fault divorce” – a less stressful approach?

Posted on the 25th March 2022 by Judith Wheeler

Divorce for most people is not considered to be easy from an emotional perspective, however, for many years the process of divorcing and dissolving a marriage / civil partnership has been made unnecessarily stressful as it has been a legal requirement to rely upon one of five reasons to justify the divorce for the Court.

From 6th April 2022, however, the law has changed and it is no longer necessary to cite reasons such as adultery, unreasonable behaviour or desertion. Gone too is the basis of having lived separately for a period in excess of two or five years as a reason to divorce.

The overhaul is long overdue and there is finally recognition that making the legal dissolution of a marriage more straightforward by removing the requirement, to in some cases, blame the other partner in the relationship, will mean that couples can concentrate their energies upon addressing more practical matters arising from their separation such as the financial settlement and arrangements for any children of the family. Even in cases where conflict and acrimony exist, the process of dissolving the marriage / civil partnership need no longer impose an additional burden and provide an arena for conflict.

The new procedure is being labelled as “no-fault” divorce because from the 6th April 2022 a party to a marriage / civil partnership will only need to file their application for a divorce or dissolution with the Court stating that the marriage has irretrievably broken down. It will be possible for one party to the relationship to apply to the Court or a joint application can be made.

It will no longer be possible to defend a divorce and it will only be feasible to dispute an Application if there are legal issues regarding the Court’s jurisdiction or if it can be proved that the marriage had never been valid or if the marriage or civil partnership has already legally ended.

Since there is concern that simplifying the procedure will make the process of Divorce “too easy” for couples, the new approach builds in a 20 week period between the date when the proceedings start and the point when the Applicant(s) can apply for a Conditional Order.

The Conditional Order is the document that confirms that the Court have determined that the Applicant is entitled to their divorce or to end their civil partnership. This point in the proceedings was previously known as the Decree Nisi.

As with the old procedure, an applicant can apply for a Final Order which is the order ending the marriage / civil partnership, six weeks and one day after the date on which the Conditional Order is made. The Final Order is the equivalent to a Decree Absolute within the old procedure.

It has usually been the case that efforts to resolve financial issues and arrangements for the care of the children of the family have taken place in parallel to the divorce proceedings. The 20 week waiting period lends itself to this approach and also allows for the parties to seek the advice and support of third parties such as independent financial advisors or relationship counselling if they require.

Whilst the new procedure may becoming simpler, it remains ever important to ensure that separating couples continue to seek legal advice regarding the terms of their financial settlement and to ensure that the terms that they agree are not only in their best interests, but also recorded in a Consent Order. A Consent Order incorporates the terms of a settlement and can be approved by the Court at ay point after the Conditional Order within the divorce proceedings. Even in cases where there may be considered to be modest assets or none at all, it is vital to have a Consent Order and the legal certainty and finality that this brings.

It is in a couple’s best interests to negotiate the terms of their settlement amicably and without the intervention of the Court, but in cases where an impasse arises then on occasions the Court’s involvement is a necessity.

Most family solicitors are members of Resolution and encourage their clients to remain as conciliatory as possible and negotiate matters concerning finances and children amicably and make an application to the Court as a last resort.

Our family team can assist with the negotiation of a financial settlement and arrangements for children. We can make referrals to mediation, including hybrid mediation where the parties and their respective solicitors work together within the mediation setting. Couples can also choose to have a Collaborative Divorce which involves joint meetings between the parties with the support of their respective Collaborative lawyers in attendance.

For expert advice about divorce and separation including the new no-fault divorce procedure then please contact our family team.