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Thinking of Divorce - A Helpful Guide

Thinking of Divorce - A Helpful Guide

Claire Clarke, Partner, Blandy & Blandy

Obtaining a divorce can be straightforward, particularly if you and your spouse agree that the marriage is over. Any difficulties that arise tend to relate more to resolving the practical issues, such as how to separate, where to live, arrangements for any children and financial matters. This guide outlines the key changes made to divorce law in 2020 and explains the broad framework and timetable of the new divorce process.

What changes were made to the law in 2020?

New legislation in the form of the Divorce, Dissolution and Separation Act 2020 (DDSA 2020) came into force on 6 April 2022 and introduced so called ‘no fault divorce.’ The DDSA 2020 represented the first significant divorce law reform since the 1970s and profoundly impacted divorce law in England and Wales paving the way for a more constructive approach to relationship breakdown.

The key changes in April 2022 were as follows:

1. Under the old law a divorce applicant had to allege fault (most commonly adultery or unreasonable behaviour), or evidence of separation (either two or five years, depending on whether it was agreed that there should be a divorce). The new application process, however, requires only a statement from one spouse that the marriage has irretrievably broken down, and it is no longer possible for any element of blame to be included as part of the divorce process.

2. The new law removed the possibility of a respondent defending the divorce. One spouse’s statement of irretrievable breakdown of the marriage will be taken as conclusive evidence of the fact that the marriage has irretrievably broken down. The only possible bases for challenging the divorce are now that the court does not have jurisdiction or there has been some form of procedural irregularity.

3. There is now the option of a joint application for divorce. This is completely new and gives couples the option of applying for divorce together, enabling a cooperative approach from the outset.

For applications issued prior to 5 April 2020 they continue to progress under the old law but all new applications for divorce now proceed in line with the updated divorce law.

Who can start divorce proceedings?

Anyone who has been married for over a year can start divorce proceedings, provided that they can satisfy one of the criteria below. It does not matter where the marriage took place.

• Both parties are habitually resident in England or Wales.

• Both parties were last jointly habitually resident in England or Wales and one of them still resides here.

• The respondent is still habitually resident in England or Wales.

• The applicant is habitually resident in England and Wales and has been for the past 12 months.

• The applicant is domiciled in England or Wales and has been residing here for at least 6 months.

• Both parties are domiciled here.

On what ground can a divorce be started?

The irretrievable breakdown of a marriage is the sole ground for divorce and a statement to this effect is conclusive. There is no longer the requirement to prove or evidence irretrievable breakdown by reference to adultery, unreasonable behaviour or a period of separation.

Can a joint or sole application be made and how do I apply?

It is possible to apply for divorce either jointly or individually. The application will therefore be either a ‘sole’ application or a ‘joint’ application. If for whatever reason, one party in a joint application no longer cooperates, the joint application can proceed as a sole application.

To start, an application needs to be submitted to the court (Form D8) with a declaration that the marriage has broken down irretrievably. This is usually made online via a court portal with a court fee payable of £593.

Applying as a sole applicant

Once the court has received the application, they will send a copy to the respondent generally by email. This will be followed up by a letter from the court.

The respondent will then have 14 days to respond to the application and will need to complete and return the Acknowledgment of Service confirming that either (i) they agree with the divorce or (ii) they intend to dispute the divorce. Before responding to an application, it is sensible for the respondent to seek legal advice.

What if the respondent disputes the divorce?

The respondent will need to complete an “answer form” confirming their reasoning. The respondent must however have a genuine legal reason such as (i) the Court does not have the jurisdiction to entertain the proceedings; (ii) the marriage is not valid or (iii) the marriage has already legally ended. They cannot object to the divorce simply because they do not want it or wish to delay the process. If the respondent notifies the Court that they wish to dispute the divorce but do not complete the “answer form”, the applicant will be able to proceed with their divorce application.

If the respondent does not return the Acknowledgment of Service, and the applicant believes they are deliberately delaying doing so, a process server can be instructed to personally serve the application on the respondent and to provide a statement of service that can be used instead of the signed Acknowledgment of Service.

Applying as joint applicants

The person to initiate the joint application is called applicant 1 and the other party will be applicant 2. This is important to note because applicant 1 is the person who pays the court fee and completes most of the application form. When applicant 1 lodges the joint application with the court, it will be sent to applicant 2 to check details and add some further information. This is done on the online court portal. Once applicant 2 has completed their part, it is sent back to applicant 1 to approve before it is finally issued. Once the divorce application has been issued, if parties have jointly applied to the Court, they will both need to submit an “acknowledgement receipt” to the Court. If for whatever reason, one party in a joint application no longer cooperates, the joint application can proceed as a sole application.

Is there a ‘cooling off period’ and what is a Conditional Order?

After the court has issued the application, there is a ‘cooling off’ period of 20 weeks before the applicant (or the parties jointly) can apply for a conditional order which is the halfway

stage of the divorce. A conditional order means that the court accepts the parties are entitled to a divorce, but it does not mean the divorce is final. In the eyes of the law, the parties are still married.

This 20-week wait gives parties an opportunity to a) reflect and work through their differences before committing to a divorce and b) work to resolve any financial arrangements, for example, what happens to any property, maintenance and division of other assets, including pensions, capital, business interests etc and seek to reach a settlement. However, a court cannot approve a financial settlement (which is recorded in a document called a Consent Order) until the conditional order has been granted.

If the judge approves the application for a conditional order, the parties will be sent a certificate, which will tell them the time and date on which a conditional order will be granted. This is the halfway stage of the divorce application. The parties do not need to attend court for the granting of the conditional order and the court issues the order electronically.

When can the Final Order be applied for?

Six weeks after the court makes the conditional order an application for a final order can be made. This can be done by a sole applicant or joint applicants.

The final order legally ends the marriage and is the point at which the parties go from being ‘married’ to being ’divorced.’ The final order can impact upon provisions of wills, or other spousal provisions in insurance contracts or pensions so it is wise for legal advice to be taken on those issues. Further, if financial issues remain to be resolved, it is best to wait until the court has approved an order formally resolving financial matters before applying for the final order. This is because if one party was to die unexpectedly after a divorce had been finalised, but before financial issues had been formally resolved, then any widow’s or widower’s entitlements could be lost.

What about financial matters on divorce or civil partnership dissolution?

The positive impact of the new divorce system does come with a small health warning. The divorce process itself does not resolve all issues between divorcing spouses, and there are usually arrangements for both children and financial matters to resolve which need to be negotiated separately.

One of the concerns with no-fault divorce is that, combined with the advent of the online divorce platform, the divorce process seems so straightforward that individuals progress the divorce without taking legal advice. However, it is crucial that both spouses receive legal advice on children and financial matters to ensure that nothing is overlooked and important assets, such as pensions, are properly considered.

Even where a couple has agreed financial arrangements, a court order must be approved by the court formalising those arrangements. Alternatively, if parties cannot reach a financial agreement, an application to the court may be required for financial matters to be determined. There are other options that may suit parties better including early neutral evaluation, mediation, collaborative law or arbitration and legal advice should be taken to decide what is most appropriate. Key to bear in mind is that both spouses have financial claims against one another upon divorce, and if those claims are not properly dealt with in a binding and enforceable court order at the time of the divorce, they could be revived many years down the line.

What about resolving issues concerning the children?

The law encourages couples to try and agree arrangements for any children in the event of a divorce. The court will not become involved regarding the arrangements for any children

unless or until either parent makes a separate application under the Children Act 1989. It is important however to ensure that arrangements for the children are resolved and this can be done via various different routes including through the court, negotiation, mediation, arbitration, collaborative law or a combination.

No fault divorce almost 2 years on from the DDSA 2020

Almost two years on, there has been a noticeable positive impact. Joint applications are not uncommon and foster a spirit of mutual agreement through the divorce process. Parties no longer need to spend time dealing with the basis for divorce and can focus instead on resolving the key issues relating to their children or finances.

Many commentators say this change was long overdue. It has brought the law of England and Wales into line with wider family law principles and the constructive approach of family practitioners in pursuing best outcomes for clients and their children. It also aligned us with jurisdictions like France, Germany and Australia, where no-fault divorce has been in place since the 1970s.

Other jurisdictions are making similar legislative changes. In February 2023 the UAE introduced a similar no-fault system for non-Muslim residents, where previously they would have had to divorce under Sharia law. Maryland is considering a similar legal change, to join the other 39 US states where no-fault divorce is in place.

The introduction of no-fault divorce has overall been a positive step. Although there are still difficult issues to resolve relating to both children and financial matters, the reduction of acrimony at the outset of the process undoubtedly encourages cooperation between separating spouses which in turn can help to reduce the time and costs resolving those issues. Blandy & Blandy is a leading Thames Valley law firm with offices in Wokingham, Henley-on-Thames and Reading. For further information or legal advice, please call 0118 951 6888 or visit the website here