2022: A Change in Divorce Law: ‘No fault’ Divorce draws near.
Solicitor, Mediator and Collaborative Practitioner
4 January 2022
A significant change in the law relating to the issue of divorce proceedings will come into effect on 6th April, 2022. This will introduce the ‘no fault’ divorce, which many family lawyers have campaigned for, for many years.
Under the existing and new laws, the only ground for a divorce will be that the marriage has ‘irretrievably broken down.’ However, under the current law, the irretrievable breakdown must be proved by one or more of five facts which are as follows:
- Adultery by the other party and the applicant finding it intolerable to live with the other party;
- Unreasonable behaviour by the other party;
- The other party having deserted the applicant for a period of at least two years before the divorce proceedings are commenced;
- The parties having lived separate and apart for at least two years before the divorce proceedings are commenced and the other party consenting to the divorce;
- The parties having lived separate and apart for at least five years before the divorce proceedings are commenced (no consent is required).
From 6th April 2022, none of the above five facts must be proved. The applicant will just file a statement (as well as dealing with other formalities), declaring that the marriage has irretrievably broken down. The other party is not able to defend or cross-apply in the proceedings. However, the applicant must wait for a period of 20 weeks before progressing to the next stage, the conditional order, which is currently known as the ‘Decree Nisi.’
Six weeks and one day after the conditional order is made, an application can be made for the ‘Final order’ which is currently known as the ‘Decree Absolute.’ The term ‘divorce’ will no longer be used but that term will be replaced with the term, ‘dissolution.’
WHAT DOES THIS CHANGE MEAN?
The change should reduce some disputes as to who will apply for the divorce and what fact is to be relied upon. However, it will mean that one party to a marriage can just file the statement of irretrievable breakdown when they wish, without agreement with or reference to, the other party who will have no right of redress.
The change also means that if you have been experiencing marital problems or are separated and are intending to start divorce proceedings, you may wish to consider whether it will be best for you to start proceedings before 6th April 2022, or whether it may be helpful to wait until after that date and dissolve the marriage without any blame being raised.
The change in the law will not affect the way in which the Courts deal with issues about children and the finances when a married couple’s relationship breaks down. However, it should be noted that if you have agreed the terms of a financial agreement or settlement which you want approved by the Court in a formal Order, any existing or proposed divorce proceedings must have reached the stage of Decree Nisi for the Court to consider the terms. Under the new procedure, this will be the conditional order which it seems cannot be applied for until the 20 weeks period has passed from the issue of the dissolution proceedings. So, in these circumstances, it may be preferable to issue divorce proceedings now if one of the five facts can be established without difficulty or acrimony.
If it may be helpful to discuss your situation with us and when it may be appropriate to issue divorce or dissolution proceedings in your case, please do not hesitate to contact us.