‘No-fault Divorce’ an Update
No-fault divorce has been introduced in England and Wales
Here, Donna Goodsell, Principal of Goodsells Family Law, discusses how a ‘no-fault divorce’ will affect divorcing couples in England.
What are the new grounds for starting a divorce?
On 6 April 2022, the new no-fault divorce law came into effect in England & Wales.
Under the new rules, it is no longer necessary to blame your spouse for the breakdown of your marriage as part of divorce proceedings or, alternatively, to wait for a minimum of 2 years after a separation to commence the proceedings.
Provided you meet the criteria to commence divorce proceedings, one or both spouses are now entitled to apply to the court for a final order dissolving your marriage on the basis that the marriage has ‘irretrievably broken down’.
The new divorce law heralds a more modern and, it is hoped, less contentious approach to ending your relationship. Of course, the parties should always proceed cautiously and obtain expert legal and financial advice before finalising their divorce.
What if my spouse will not consent to a divorce?
It remains possible to proceed as a sole applicant to a divorce. Upon receipt of the application for divorce, your spouse must respond within 14 days. They can now only object to the divorce in very limited circumstances.
The new legislation restricts the grounds upon which your spouse may object to a divorce, as follows:
- the criteria to commence divorce proceedings in this jurisdiction have not been met;
- the marriage is not a valid marriage within the laws of the country where the ceremony took place; or
- the marriage was already legally ended in another jurisdiction.
It will be necessary to ensure that after the divorce application has been issued, you promptly serve the application on your spouse. If not, you may be unable to proceed with your application or the court may penalise you for the delay.
If your spouse refuses to accept service of the divorce application and you can demonstrate they received notice of the application, you are entitled to ask the court to order that service of the application is deemed to have taken place.
How long is the process for divorce?
Assuming your spouse has received your application for divorce and raised no objections, you may proceed with your application to the court for a Conditional Order, previously known as Decree Nisi. A Conditional Order will be granted 20 weeks from the date your application.
Six weeks after the date of your Conditional Order, you are entitled to apply for your Final Order of divorce, formerly known as Decree Absolute. In total the entire process could be complete within 6 months.
Are there any risks with the new ‘no-fault divorce?’
Whilst it may be tempting to proceed with your divorce online, it is essential to obtain expert legal advice in order to address the very important issues which arise from your divorce, including provision for your children and where they shall live.
Equally, the division of the financial assets of the marriage can often prove complex and it is imperative to obtain advice regarding the tax implications of your new status, particularly if one party vacates the marital home prior to achieving a financial settlement.
What preparations are necessary for a financial claim or settlement?
It is not always possible prior to your divorce to engage in measured discussions with your spouse concerning the division of family the assets. You may have competing needs or priorities, making it difficult to reach agreement.
Therefore, if mediation proves unsuccessful, soon after commencing the divorce process it may be wise to issue proceedings for a financial settlement in order to secure your home and finances after the divorce.
The process towards achieving a financial settlement can be daunting and detailed. Careful preparation towards providing financial disclosure of your assets is essential in order to avoid mistakes.
If agreement cannot be reached regarding the value of the former marital home, other property, pensions or tax liability, it will be necessary to instruct independent experts to provide opinions in time for the first court hearing.
The judge will also expect to see evidence of your mortgage capacity and particulars of properties you consider suitable for both yourself and your spouse.
Such preparation can be overwhelming, particularly at a time when you are feeling emotionally vulnerable and have competing commitments. Without the insurance of expert legal advice and guidance through the process, you may be exposed to mistakes and oversights, which may be impossible to unravel and, ultimately, prove to be significantly detrimental to your future security.
Get expert no-fault divorce advice
Donna Goodsell is an experienced solicitor who specialises in all aspects of Family Law. Please do not hesitate to contact us if you require expert advice to help with decisions affecting you and your family.