Family & Divorce Law

What difference is the new law for No-Fault Divorce going to make?

At present, if you wish to divorce, one of you will need to divorce (or dissolve a civil partnership) the other: you cannot get a joint divorce. The new law will also allow the applications to be joint or individual.

22 Mar 2022

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Emma Boys-Smith

Emma Boys Smith

No fault divorce

Currently, the person applying for divorce will need to show that the marriage has irretrievably broken down on one of the 5 facts: –

  1. Adultery
  2. Unreasonable Behaviour
  3. 2 years of Separation (by consent)
  4. Desertion
  5. 5 years separation

As of 6th April 2022 the new divorce law will remove the need to find fault and require the applicant(s) to produce a statement of irretrievable breakdown.

Terminology

The person who applies for the divorce will be called the applicant instead of the petitioner.

The other party will still be referred to as Respondent

In a sole application, the person applying for divorce will be referred to as the applicant and their spouse/civil partner will be known as Respondent.

In a joint divorce, parties will be known as Applicant 1 and Applicant 2 and will be equally responsible for the application

The term Decree Nisi has been updated to Conditional Order

The term Decree Absolute has been updated to Final Order

Disputing the divorce

Currently, the respondent can contest the divorce. Under the new law, the respondent can only dispute the application in limited circumstances: –

  • Dispute the jurisdiction of the court in England and Wales
  • Dispute the validity of the marriage or civil partnership
  • If the Marriage or civil partnership has already been legally ended.
  • Fraud or procedural compliance (possible)

Serving the divorce application

Under existing law, the court serves the divorce petition on the other party and the petitioner is not allowed to serve the other party themselves.

Under the new rules, the applicant in a sole application may serve the application on the respondent, on request to the court. In a joint application there is no requirement to serve the papers on the other party.

How will I apply for Divorce?

Sole Applications

The applicant completes the D8 form application and pays the court fee. The applicant or the court serves the application on the respondent. See flowchart for more information.

Within 14 days of the receiving the application, the respondent will need to respond by completing an acknowledgment of service on a D10 form. If the respondent agrees to proceed then the applicant will then be able to apply for a conditional order on a D84 form at least 20 weeks after the court issued the application.

If approved by the Court, the applicant will then be able to complete the D36 form application for the conditional order to be made final.


Joint Applications

Both applicants complete the D8 form application for divorce. Joint applicants can agree to share the fee for the application, however on the digital service, applicant 1 will actually have to pay the court fee. See flowchart for more information.

Once the application has been approved by the court, the applicants can complete a D84 form and apply for conditional order. Then if approved by the court, the applicants will be able to complete the D36 form for the conditional order to be made final.

FAQs

What if the relationship deteriorates further where a joint applicant is made?

It is possible to switch from Joint to Sole application by completing a form D36A, but this can only happen at conditional and final order application stage.

What are the time estimates?

For Divorce and dissolution proceedings, there is a new minimum 20-week period from when the court issues the application and where the applicant(s) may apply for a conditional order. This is to allow a period of reflection and allow couples to resolve other issues such as child or financial arrangements. This will incorporate the existing minimum 6-week period between conditional order and final order of divorce. For most people divorce will take a minimum of 26 weeks to be finalised.

What if it is urgent?

In exceptional circumstances, Applicants will need to make an offline application to the court to expedite the application.

What if my divorce application has already been issued under old law but won’t be completed by 5th April?

Any divorce application which has been issued on or before 5th April will continue to progress under the existing law. This means the applicant will apply for and receive a Decree Nisi and a Decree Absolute to finalise their divorce.

What if the divorce is disputed by the Respondent?

The respondent will have to complete a form D8B and can only dispute on the following grounds: the court’s jurisdiction to entertain the proceedings, the marriage is not valid or the marriage has already ended.

M&P Commentary

Emma Boys-Smith, a Paralegal in our Family Law department, said:

“Our Family Department can help you with a divorce and matters arising from the divorce such as financial, property and children you wish to enquire about Divorce advice. Please contact us for an appointment on 01708 784000.”

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