The Divorce, Dissolution and Separation Act 2020, which established the concept of no-fault divorce, has been in force since 6 April 2022. This ground-breaking legislation introduced the most significant change to divorce law for decades by completely ending the need for one separating spouse to blame the other for the breakdown of their marriage so that they can obtain a divorce. Instead, the new framework focuses on helping divorcing couples look to the future and concentrate on crucial practical decisions involving children or their finances. More than a year after its introduction, we look at the impact of this legislation and how it is working in practice.
Why Were Changes Introduced?
Under the old law, a divorce applicant was either forced to make allegations about their spouse’s conduct, such as adultery or unreasonable behaviour, or face years of separation (either two or five years, depending on whether or not it was agreed that there should be a divorce) before a divorce was granted.
It was felt, however, that assigning blame to one party was unproductive and often destroyed what was left of the relationship. Instead, the government decided that a new system was needed that concentrated on amicable cooperation, facilitating negotiations and reducing the stress of divorce.
How Does No-Fault Divorce Work?
Under the new process, one or both parties may make a divorce application by confirming that the marriage has irretrievably broken down. It is now possible to make a joint application for divorce, which it was hoped would foster a cooperative approach from the outset. This change also affects civil partnerships.
It is now very difficult to contest a divorce; under the new divorce regime, it can only be challenged on the basis that the court does not have jurisdiction or there has been some kind of procedural irregularity.
Once the court has processed the application, the parties will need to wait a minimum of twenty weeks before moving on to the next stage. This delay is expected to be a period of reflection and allows couples an opportunity to settle their finances and any child arrangements.
After twenty weeks, the parties can apply for a Conditional Order (previously a ‘Decree Nisi’). As before, couples will then have to wait at least six weeks before they can apply to finalise the divorce and end the marriage.
Has the Divorce Rate Increased Since No-Fault Divorce?
Solicitors were bracing themselves for a flurry of divorce applications after the new rules kicked in last April. Initially, there was an influx of people commencing divorce proceedings following the introduction of the new rules. There were 12, 978 digital divorce applications in April 2022, compared with 6,764 in April 2021. This dramatic increase was partly due to couples choosing to wait until they could apply on a no-fault basis before starting divorce proceedings.
The latest data indicates that divorcing couples are continuing to make use of the new system. In the nine months following the introduction of the no-fault regime, there were 89,123 divorce applications (78% from sole applicants and 22 % from joint applicants). This is higher than the nine months between April to December 2021 (before the new system was introduced), where there were 77,449 divorce applications. However, this increase is consistent with the experience of other countries that introduced similar reforms and could also be a consequence of stress related to the cost-of-living crisis.
What has Been the Impact of the Reforms?
Resolution - an organisation of family lawyers and other family justice professionals who are dedicated to a non-confrontational approach to resolving family issues - believes that the experience of no-fault divorce in its first year has been almost universally positive. This, it claims, is because the animosity has been removed from the outset and important discussions about children and finances can start on a much more positive note. The process is also much more straightforward for parties to understand and navigate, especially coupled with the option of making online divorce applications since 2018.
The language has also been updated – for example, Decree Nisi and Decree Absolute have become Conditional Order and Final Order respectively – in line with the objective of simplifying the divorce process.
One thing that has been frustrating for divorcing couples, however, is the further built-in delays in receiving their final divorce order. The parties now have to wait a further twenty weeks between starting proceedings and before applying for a conditional order. This, together with the massive delays in the family courts, which are under immense pressure and have not yet returned to pre-pandemic levels of service, has led to an increased time frame in obtaining a divorce under the new regime. Between April 2022 (when the law was introduced) and December 2022, it took an average of 67 weeks for divorce proceedings to be completed, an increase of 14 weeks compared with the same period in 2021. It is expected that once the court delays settling down, however, a no-fault divorce should take around 7-10 months to complete.
A Drawback to the New Regime
There is no doubt that the introduction of no-fault divorce has been a positive step, especially for couples who both wanted to get divorced but didn’t want to wait two years.
However, there is a concern that since the new divorce process appears to be much more straightforward, individuals are proceeding with the divorce without taking legal advice. It is still essential that both spouses receive legal advice on financial matters to ensure that important assets, such as pensions, are properly considered. Even where a couple has managed to come to a good understanding of financial arrangements, it is important to get a court order to formalise those arrangements to avoid issues further down the line.
At Witan Solicitors, we are experienced in dealing with all aspects of family and financial issues in divorce. If you would like to discuss any aspect of divorce or separation with an expert family lawyer, feel free to send an email to info@witansolicitors.co.uk.
