In 2022, No Fault divorce was introduced which radically changed the divorce process. The decision to end a marriage should never be made lightly, however the online No Fault divorce system has made it easier for couples to start the divorce process themselves.
Whilst commencing proceedings online yourself might be a good way to start the divorce process, there are pitfalls that are easy to fall into if professional legal advice is not obtained, and which can have long-term financial and emotional consequences. Our Divorce & Family Law team answer the most frequently asked questions about No Fault divorce, finances on divorce, and arrangements for children.
What are the grounds for a No Fault divorce?
One of the major changes with the introduction of No Fault divorce is that there no longer needs to be evidence of wrongdoing by either party, so it removes the ‘blame’ element. Under the No Fault divorce process the only ‘ground’ is that the marriage has irretrievably broken down, and this does not have to be proven to the Court. Previously there were ‘grounds for divorce’ relating to conducts such as adultery, unreasonable behaviour, desertion or separation but these no longer exist.
In theory, by removing the blame element from the process No Fault divorce proceedings should be less confrontational, however in reality, especially when it comes to child arrangements and the division of finances there is often a need to seek legal advice to ensure that arrangements are fair, binding and agreeable to all parties.
How long do you need to be separated for a No Fault divorce?
Unlike like the old divorce process, where parties would have had to live apart for at least two years if they did not want to rely on proving to the Court that a fault of the other led to the irretrievable breakdown of the marriage, there is no specified period of separation for no-fault divorce. Parties do however have to have been married for at least 1 year before divorce proceedings can be commenced.
Can I contest a No Fault divorce?
For a No Fault divorce, the Applicant does not need the other party’s consent, so there is no way to contest or defend the divorce unless it can be disputed on jurisdictional grounds (international considerations), on the validity of the marriage or fraud and/or procedural compliance.
Has the terminology used in No Fault divorce changed?
Yes, there are changes to the terms used, the main ones being:
- The Petitioner is now known as the Applicant
- A Divorce Petition (when someone files for divorce) is now referred to as the Divorce Application
- Decree Nisi has been replaced by a Conditional Order (confirmation that you are entitled to a divorce)
- Decree Absolute is now known as a Final Order (this concludes the divorce process).
Are there occasions when it might not be suitable to apply for a No Fault divorce online yourself?
Whilst the new No Fault divorce process has simplified things, there are still circumstances when it may not be suitable for people to commence their own divorce, such as:
- They do not know the current address of their spouse
- They believe that their spouse will evade and deliberately try to delay the divorce proceedings or not respond/cooperate during the process
- There have been allegations of domestic abuse
- The person commencing proceedings does not want to have to deal with the emotional and/or practical implications of being ‘in charge’ of their own paperwork
- There are issues surrounding jurisdiction (international considerations) or the validity of the marriage
How long does a No Fault divorce take?
From making the application online to the granting of the Final Order, a No Fault divorce is likely to take roughly 6-8 months to complete unless there are complexities which means that it cannot be dealt with on paper and Court hearings are necessary (although this is not usual). Sorting out financial arrangements, even if an application to Court is not required, can significantly extend the time the process takes however, potentially taking it to 12-18 months.
The primary timings in No Fault divorce are as follows:
Application Filed
An application for divorce is filled in online. The Court will serve the Respondent or both parties (if it is a joint application) via email within 28 days.
Application Acknowledgement or Answer
From the date of service of the application, the Respondent has 14 days to file an Acknowledgement of Service (confirming that they know that the proceedings have been commenced), and further 21 days to file an answer (if they intend to dispute or defend the divorce), if they have indicated an intention to do so in the Acknowledgement.
Conditional Order
There is a deliberate statutory delay of 20 weeks between the date of issue of the application and applying for the Conditional Order to allow a period of reflection to give parties a chance to change their minds, or to start to plan arrangements for their children, if any, and consider financial issues. Once this 20-week holding period has passed, the Applicant, or both Applicants in the case of a joint application, can apply for the Conditional Order. The Court will consider the application for Conditional Order and determine whether or not the paperwork is in order. Assuming that the Court deems this to be the case, a Certificate of Entitlement will be issued confirming the date that the Conditional Order is granted. The Conditional Order is granted at a Court hearing however this does not need to be attended by the parties.
Final Order
6 weeks and 1 day after the date of the Conditional Order, the Applicant can apply for the Final Order of divorce (or both parties can if it is a joint application). If a joint application has been made then both parties will need to make the application for the Final Order. The Court usually processes the Final Order application very quickly. It should be noted that if there is a delay over 12 months from the date of the Conditional Order being granted before the Final Order is applied for, the applicant will need to answer further questions to explain to the Court the reasons for the delay in the application.
I’ve started the No Fault divorce process myself but think I need help – can I ask a solicitor in to assist me?
If you have started the divorce yourself online and are now having difficulties a solicitor can later take over your divorce and deal with matters for you.
Does No Fault divorce deal with financial matters?
Whilst the No Fault online portal has made the commencement of divorce proceedings easier, financial matters are separate from the divorce proceedings and can be dealt with in a number of ways, the most common are as follows:-
- The parties reach an agreement between themselves which is embodied in a Consent Order;
- The parties attend mediation and reach an agreement, which is then reflected in a document called a Memorandum of Understanding;
- The parties exchange voluntary financial disclosure and then enter into solicitor-led negotiations via correspondence or a round table meeting;
- One party issues financial remedy proceedings with the Court
Save for when Court proceedings are issued (when the result is a Financial Order from the Court) the intention is an agreement will be reached between the parties that will then be drawn up into a Consent Order, which is drafted by a solicitor. The Consent Order is then submitted to the Court and once approved becomes legally binding.
If there is not a Consent Order in place both parties leave themselves open to financial claims from the other party in relation to income, capital and pensions both now and in the future. It is therefore recommended to sort out financial affairs at the time of the divorce. Even if there may be no finances to speak of at the time of divorce they could in bring a claim against the other party in the future against assets acquired post-divorce.
What are Financial Remedy proceedings in No Fault divorce?
If a couple cannot agree on financial matters when getting a No Fault divorce, one of them can apply to the Court for a legally binding financial Order; this is called Financial Remedy proceedings. It is important that both parties are honest so that a fair financial settlement can be reached that doesn’t disadvantage either party.
As part of this process, both parties must provide the Court with full details of their financial situation. This includes details of their income, any property or land they own, bank and saving accounts, investments, life insurance policies, business assets, pensions, state benefits, cash sums and individual belongings worth over £500. They will also have to outline any debts and their income needs for themselves and any children being provided for by them.
On occasion, one or both sides may try to ‘hide’ cash or assets during the divorce process, thereby breaking the legal requirement of ‘full and frank disclosure’. This is often the case where there is an imbalance in the management or generation of wealth in a relationship, and one party is considered to be the ‘main breadwinner’.
Common methods to try and hide assets in a divorce include transferring money to other accounts or family members, creating non-existent debts or invoices, undervaluing assets or business interests, putting money in trusts, offshore accounts, not declaring digital assets such as cryptocurrency and/or withdrawing cash. This list is of course not exhaustive.
Those who try and hide the truth about their financial situation during the divorce process should be aware that even if the other party doesn’t see the signs of deception, experienced Family Law solicitors can often spot the red flags that the other person isn’t being completely honest. They can also call on the assistance of forensic accountants to investigate, who are experts in analysing complex financial structures.
If one party can demonstrate a reasonable belief that the other person is about to dispose of assets, a solicitor can apply to the Court for an Order to prevent a person from concluding the financial transaction, have money or assets to be moved back if they have already been transferred or for bank accounts to be frozen. Orders can also be used if there is evidence that a party plans to destroy documents to hide their assets.
Solicitors can also ask the Court to grant a non-party disclosure Order if the documents in question are likely to support the case and disclosure is considered important to reaching a fair, equitable financial settlement. These Orders can enable them to obtain information directly from banks, employers, HMRC, business associates, trustees and the Land Registry regardless of whether the party in question agrees.
There are serious consequences for deliberately trying to hide money or assets during a divorce. If caught, the deceiving party may be made to pay the legal bill for both sides or may receive a less favourable financial settlement than they would have been awarded otherwise. If the fraud is extreme, it could be classed as perjury or contempt of Court, which is a criminal offence and can be punished by a fine and/or imprisonment.
It is important to note that there is no time limitation, so if one party suddenly seems to be enjoying wealth that was not disclosed at the time of the divorce, the Court can reopen the case and change a financial Order providing that there is clear evidence that there was non-disclosure at the time
Does No Fault divorce deal with Child Custody and Contact Arrangements?
If you apply for a No Fault divorce you don’t need to go to Court to formalise child arrangements such as where the children will live, how often they will see each parent, when/how other types of contact take place e.g., phone calls. If parents can agree on arrangements for their children between themselves the Court doesn’t want to get involved unless they absolutely have to – this is something called the ‘no Order principle’.
However, if you require assistance in respect of arrangements for your children and how they will spend their time with each parent, then that will require entirely separate proceedings and you may wish to use solicitors to help advise on the best course of action to try and reach an agreement with the other parent regarding child arrangements before making an application to Court.
If you cannot reach an agreement yourselves then you must attend mediation to discuss the arrangements before making an application to Court. Mediation is now a compulsory step before Court proceedings can be issued, save in exceptional circumstances such as where there has been domestic abuse or serious safeguarding concerns.
Mediation is a forum where both parents can voice their concerns and be heard. The mediator will not impose an agreement on you and is instead there to ensure that your conversations remain on track, whilst providing both parents with guidance. If an agreement cannot be reached, or if mediation breaks down, the mediator will provide a form confirming that mediation has been attempted which needs to be shown to the Court when proceedings are issued.
If Court proceedings are necessary, then the Court will consider what is in the children’s best interests – both parents will be given the opportunity to put forward their proposal for arrangements.
The Court will ultimately make a decision at a Final Hearing if an agreement cannot be reached between the parties and issue a Child Arrangements Order which determines where a child lives and who they spend time with until the children turns 18 years old. The terms of the Order are legally binding and can be enforced against a parent who does not comply.
The Court’s decision is final and therefore a Judge may decide on an arrangement that neither party thinks is in the best interests of the children, which is why it is always better for parents to try and reach an agreement themselves.
The Court can also issue a ‘Specific Issue Order’ to look at a specific question about how a child is being brought up, for example, what school they go to or if they should have a religious education. You can also apply for a ‘Prohibited Steps Order’ to stop the other parent from taking certain types of action relating to your child’s upbringing e.g., changing a child’s surname; or taking a child out of the country on holiday or permanently.
Court proceedings can be costly and time consuming and it is for this reason that parents are encouraged to try to resolve matters themselves and to only use the Court process as a last resort.
Are there alternatives to Court if we cannot agree during a No Fault divorce?
In 2024, there were changes to the Family Procedure Rules aimed at resolving family law arrangements outside of Family Court through the use non-Court dispute resolution (NCDR) methods, including Mediation, Arbitration, evaluation by a neutral third party (such as Private Financial Dispute Resolution) and Collaborative Law.
In practical terms, this means that if you wish to go to Court to decide family matters, such as child arrangements or the division of finances, you need to try to use a form of NCDR to reach an agreement before making a Court application or be prepared to explain to the Court why you are not engaging in some form of NCDR.
Mediation is often more cost efficient and quicker than Court proceedings. It involves both parties attending a meeting with a trained independent mediator, who is paid for their time. The mediator will help facilitate discussion and communication regarding issues such as child arrangements and/or the division of finances, with the aim of reaching an agreement. In situations where face-to-face communications are difficult, the parties can each remain in separate rooms and the mediator ‘shuttles’ between them. The mediator will remain neutral and will not provide either party with legal advice, so they should still seek advice from a solicitor. The mediator will record any agreements so that a solicitor can draft the agreed terms into a legally binding document to be submitted to the Court.
An arbitrator can usually issue a decision more quickly than a Court. Arbitration involves a trained arbitrator who is legally qualified and has experience in family law. The arbitrator will hear from each party’s respective solicitors and will examine the issues. After considering the facts and requirements of all parties the arbitrator will issue a decision that is legally binding on both parties which can be enforced through the Courts. Parties will have the choice of meeting face to face or submitting their case through writing only, and whether to use the arbitrator for the whole process or just the parts they need assistance with.
A Private FDR (Financial Dispute Resolution Hearing, which is usually the second hearing in Financial Remedy proceedings) is usually quicker than going to Court as you do not have to wait for Court availability. Both parties step out of the Court system and engage a privately paid-for evaluator (usually a barrister or retired Judge), who will provide an evaluation of the likely outcome of the financial matters. The evaluator will read the case papers, listen to the representations of both sides’ barristers, and then provide an ‘indication’ as to the overall settlement.
Neither party will be required to speak or to give any evidence, save for through their representative. Unlike arbitration, the evaluator’s indication is not binding and is only intended to be an aid to settlement. People who are already in the Court process can opt for a Private FDR instead of a Court-based FDR although there are cost implications for this. Those who have not started Court proceedings can also agree to attend a Private FDR once they have exchanged financial disclosure and, if they do not settle at the Private FDR, use the arbitration process to go straight to a final hearing without having to go through the full Court process.
Under the collaborative law process, each person appoints their own collaboratively-trained solicitor and all meet together to work things out face to face. Both parties will have their solicitor with them throughout the process and so they will have their support and legal advice, and if they wish, they can also involve other parties such as an independent financial adviser, an accountant, or a child specialist. All these professionals will collectively make up the collaborative team. The parties and their team sign an agreement to commit to trying to resolve the issues without going to Court and which prevents them from representing the parties in Court if the collaborative process breaks down. This means that everyone is absolutely committed to finding the best solutions by agreement, rather than through Court proceedings.
How much does a No Fault divorce cost?
There are a number of set fees for orders during a divorce, the main ones being:
- The Court fee for applying for a divorce or civil partnership dissolution is currently £612. This fee is payable at the start of the process.
- The Court fee for applying for a Child Arrangement Order is currently £263. A Child Arrangements Order outlines who a child is to live, spend time and have contact with, and might be applied for when separated parents can’t come to an agreement on such arrangements.
- The Court fee for applying for a Financial Order, is currently £313. This order is legally binding and sets out the financial agreement between parties who are divorcing.
- The Court fee for filing a Consent Order with the Court for approval currently costs £60.
If you require assistance from a solicitor during the divorce process, which is usually recommended during negotiations over children and finances to ensure that fair and binding arrangements are put in place, you will have to pay their legal fees.
For a confidential discussion about divorce, separation or any other aspect of Family Law, please contact Richard Rodway in our Henley office on T: 01491 570 900, or Julia Drury in our Reading office on T: 0118 975 6622.