On 6th April 2022 divorce law changed fundamentally with the introduction of ‘no fault divorce’ (officially the Divorce, Dissolution and Separation Act 2020) and so began the new era of not apportioning blame for the breakdown of a marriage. This dramatically changed the divorce process for both couples and lawyers alike. Now that enough time has passed for the system to be tried and tested as divorces conclude, it seems an appropriate time to review the current law.

Basis for divorce

The only basis for a divorce is “the irretrievable breakdown of the marriage”. Under the ‘no fault’ divorce process there is no opportunity to explain to the Court why the marriage has broken down or to claim that the other party is at fault. Therefore, even if one party has been unfaithful, or there has been domestic abuse, this is no longer relevant to the divorce and the Court cannot be given any allegations.

Sole or Joint Application?

When a marriage has irretrievably broken down and a party (or both parties) are considering divorce proceedings, the decision that needs to be made is whether to make a sole application for divorce (in which one party divorces the other), or a joint application (in which both parties divorce each other). It really makes no difference to the outcome of the proceedings which option is pursued, but if parties are trying to stay amicable, they may prefer a joint application. A joint application involves both parties completing all the required paperwork online.

Timeline

Once the divorce application has been made, it is sent to the other party who must acknowledge receipt. The parties then enter into a mandatory holding period of 20 weeks before the Conditional Order (formerly Decree Nisi) can be applied for. After the Conditional Order has been made, there is a further wait of 6 weeks before the final Order can be applied for to conclude the divorce. We are finding that divorces are therefore taking a minimum of 6 months to conclude. We will (almost) always advise parties to delay applying for the final Order until finances have been resolved by way of a legally binding agreement (“Consent Order”).

Starting proceedings and financial agreements

Some of our clients have said that they have discussed matters with the other party and have agreed to delay applying for the divorce until they have reached a financial agreement. However, parties must note that it is impossible to have a legally binding agreement until the Court Conditional Order in the divorce proceedings has been granted, which is a minimum of 4 months away from the date the divorce application is made. We are therefore advising clients to reconsider their positions and that there is unlikely to be any prejudice by starting divorce proceedings at an early stage and then commencing negotiations about finances. Otherwise parties run the risk of reaching an agreement but being unwilling or unable to implement the terms whilst they are not binding.

How we can help

If you have any questions about getting a divorce or any other aspect of family law, then please call Julia Drury on 0118 975 6622 (Lower Earley office) or Richard Rodway on 01491 570900 (Henley-on-Thames office) or send us a confidential email to office@thpsolicitors.co.uk