Date finally confirmed for the introduction of no-fault divorce in England and Wales

In June 2021 the government confirmed that the new ‘no-fault divorce’ law (the Divorce, Dissolution and Separation Act 2020) will come into force in England and Wales on 6 April 2022.  From that date, separating spouses will be able to start the divorce process immediately without having to cite the other’s unreasonable behaviour or adultery in their petition/application (even if they have not been separated for a specific period), i.e. they will not need to ‘blame’ the other spouse.

What this means if you are considering separation or divorce

The announcement may cause parties to consider whether to delay commencing a divorce until the new law comes into force in April 2022.  If parties are certain that their marriage is irretrievably broken down and wish to deal with divorce and the financial aspects as quickly as possible, it is likely to be better to proceed under the current law rather than delay.  Although a petition/application citing unreasonable behaviour must include several examples, the behaviour does not need to be anything terrible or shocking.  It must simply be sufficient to satisfy the court that it has led the petitioner/applicant to conclude that the marriage has irretrievably broken down.  The behaviour cited does not generally (save in exceptional circumstances) impact the financial arrangements ancillary to divorce or arrangements for the children.

If a spouse cannot rely on a period of separation, their spouse has not committed adultery and they are very reluctant to cite unreasonable behaviour, it may be appropriate for them to wait until April 2022 to commence the divorce.  However, even if you are considering delaying divorce, I strongly recommend seeking legal advice immediately particularly with regard to the financial aspects and division of assets to avoid unintended and potentially disadvantageous consequences.  Seeking specific legal advice will enable you to consider the best way to proceed, taking into account your circumstances and whether you need any urgent specialist advice, for example regarding potential tax issues arising from your separation.

The changes that will come into force in April 2022

Under the current law, even where a spouse wishes to divorce as amicably as possible, they must rely on one of five ‘facts’ in their petition/application to prove the irretrievable breakdown of the marriage.  The five facts are unreasonable behaviour, adultery, two years’ separation with the other spouse’s consent, five years’ separation, or two years’ desertion.  Parties can find it stressful to cite examples of unreasonable behaviour or details of adultery and feel concerned that ‘blaming’ the other spouse may lead to unnecessary ill feeling.  Even where separating spouses are not amicable, the new law will encourage a more constructive approach whilst still enabling a spouse to divorce without waiting to rely on a period of separation.

The government had planned to introduce no-fault divorce in the autumn of 2021, but it has been delayed until 6 April 2022.  It is understood the delay includes time for necessary IT changes to be made to the court’s online divorce systems.

The new law will also introduce joint applications where the couple both agree that the relationship has irretrievably broken down.  Applicants will still be able to file a sole application if their spouse does not agree.  The new law will remove the ability to contest a divorce/dissolution.  However, although under current matrimonial law it is possible to contest a divorce, it is very unusual for a respondent to do so once they have taken legal advice.   It will introduce a minimum period of 20 weeks from the start of the divorce proceedings to when the Conditional Order can be pronounced.  The 6 week and 1 day period between the Conditional Order and when the Final Order can be made will be retained.  The delay is intended to provide a period of reflection to consider whether the applicant(s) is certain they want to divorce.  The minimum periods mean that divorce/dissolution will take approximately 6 months, which is not dissimilar to the current usual timescale.  I generally recommend delaying the application for the final decree/order until the financial aspects have been finalised and recommend taking advice in that regard.

As is the case now, it is wise for parties to start to consider the financial aspects without delay so that a financial order can be filed at the earliest opportunity.  Although a financial order cannot be approved by the Family Court until Decree Nisi/Conditional Order is pronounced, the parties can immediately start working towards agreeing the terms of a financial order/consent order.

Initial advice

GoodLaw Solicitors LLP have specialist family lawyers at their offices in Farnham, Hove and Brighton.  We are members of Resolution and are committed to achieving the best outcome for our client but in the most amicable and cost effective way possible.  We will be pleased to hear from you if you would like to arrange an initial meeting.