New No-fault divorce system: what you need to know

As the reader may well be aware, we now have a new, no-fault, divorce system in England and Wales. The new system is almost entirely different from the old, so what do you need to know about it if you are contemplating divorce proceedings?

These are the six main things that you should be aware of:

New terminology

The first thing you will need to know in order to understand what follows, is that the new system uses new terminology.

Accordingly, we will no longer refer to a Divorce ‘Petition’, which becomes a Divorce ‘Application’. The ‘Petitioner’ therefore becomes the ‘Applicant’. (The other party will still be known as the ‘Respondent’.)

And the old ‘Decree Nisi’, when the court confirms that the requirements for the divorce have been met, is replaced by the term ‘Conditional Order’.

Lastly, the old term ‘Decree Absolute’ is replaced by the term ‘Final Order’.

No proof of breakdown required for No-fault divorce system

Moving on, the ‘headline’ change under the new system is, of course, the removal of the need to prove that the marriage has irretrievably broken down.

Irretrievable breakdown of the marriage will still be the ground for divorce, as it was under the old system. However, under the old system it was necessary to prove irretrievable breakdown, by showing that the respondent had committed adultery or behaved unreasonably, etc.

Such proof will no longer be necessary. All that will be required is for one or both of the parties to file with the court a statement saying that the marriage has broken down irretrievably. That statement must be accepted by the court as conclusive evidence that the marriage has broken indeed down irretrievably.

Accordingly, the new system does away with the need under the old system to blame the other party for the breakdown of the marriage (at least unless the parties had been separated for at least two years).

You can divorce jointly with spouse

A feature of the new system is that, for the first time, the divorce application can be made jointly by both parties. In such cases the statement that the marriage has irretrievably broken down will be signed by both parties.

Hopefully, joint divorce applications will be a way to keep the divorce as amicable as possible.

Divorce can’t be defended

Under the old system it was possible for the respondent to defend the divorce proceedings, by claiming that the marriage had not irretrievably broken down irretrievably. Defended divorce proceedings, whilst rare, would slow down the divorce process, and add enormously to the costs. They could even result in the court refusing the divorce, if it found that the marriage had not broken down irretrievably.

Under the new no-fault divorce system it will simply not be possible to defend the divorce. The respondent may be able to delay the divorce, for example until the court has considered their financial position after the divorce, but they will not be able to prevent the divorce going through.

New time limits for No-fault divorce system

Divorces under the new system may, in theory at least, take longer than under the old system.

Under the old system there was no time limit between issuing the petition and the making of the decree nisi. It was therefore possible, in theory, to get the decree nisi quite quickly (say, within three months), depending upon how quickly the court could deal with it.

Under the new system it will not be possible to apply for the conditional order (by confirming that the marriage has irretrievably broken down) until twenty weeks have elapsed from the start of the proceedings. This period is intended to provide the applicant(s) with time to reflect and consider whether they do, indeed, want to go ahead with the divorce.

There will still be a six week time period between the conditional order and the final order, as under the old system. A divorce under the new system will therefore take a minimum of twenty-six weeks.

No costs orders

As with other types of court proceedings, anyone making a divorce application will incur costs (there is a fee of £593 just to issue the application). And just as with other types of proceedings, it is possible to ask the court to order the other party (i.e. the respondent) to pay those costs.

Costs orders were quite rare under the old divorce system, but they could be made, where the respondent was found to be to blame for the breakdown of the marriage, for example where they had committed adultery.

However, as explained above there is no attribution of blame under the new system. The President of the Family Division has therefore made it clear that in the great majority of cases under the new no-fault divorce system a costs order will not be appropriate.

Accordingly, the party issuing the divorce application will have to bear the costs themselves, although if it is a joint application one would obviously expect the costs to be shared.

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