No-fault Divorce: Your Guide on How it Works

1. Ending the ‘Blame Game’

It goes without saying that for many couples divorce can be a difficult and stressful process. The fallout from the breakdown of the marriage can leave a residue of animosity that carries over into the process, making amicable resolution of important matters such as finances and arrangements for children much harder, or even impossible, to achieve.

And until recently it was often necessary for the party issuing the divorce proceedings to blame the other for the breakdown of the marriage, something that could inevitably just add to the animosity.

Thankfully, in 2022 the law on divorce in England and Wales was fundamentally reformed by the introduction of no-fault divorce, thereby doing away with the ‘blame game’.

Of course, no-fault divorce does not mean that divorce will always be amicable. But at least it has done away with an unnecessary cause of (further) animosity, hopefully making it easier for couples to resolve important matters in a reasonably constructive way.

This article will examine what exactly is meant by ‘no-fault divorce’, look at the process involved, address common questions, and explain how Walker Family Law can help you through the process.

2. Understanding No-Fault Divorce

2.1. What is No-Fault Divorce?

• Definition: No-fault divorce is a legal process for the dissolution of a marriage, where the sole legal requirement is a statement from one or both parties that the marriage has irretrievably broken down. Irretrievable breakdown is the ground for divorce, and the court must accept the statement as proof that the marriage has indeed irretrievably broken down.
• The Law: No-fault divorce was introduced by the Divorce, Dissolution and Separation Act 2020, which came into force on the 6^th of April 2022.
• How no-fault divorce differs from the old system: Irretrievable breakdown of the marriage was also the ground for divorce under the old system. However, under that system it was not enough just to say that the marriage had irretrievably broken down. The party taking the divorce proceedings had to prove irretrievable breakdown by proving one of the five “facts”: adultery, unreasonable behaviour, desertion for two years, two-year separation with consent, or five-year separation without consent. Thus, if the parties had not been apart for at least two years then the party taking the divorce proceedings would have to prove either that the other party had committed adultery, or that they had behaved unreasonably.

2.2. Who Can Apply for a Divorce?

• Legally married: Obviously, the parties must be legally married (i.e. the marriage must be recognised by the law of England and Wales), whether that be an opposite-sex marriage, or a same-sex marriage.
• Jurisdiction: There are also jurisdictional requirements. These can be quite complicated, but the usual basis for the court to have jurisdiction is where one or both parties are habitually resident in England and Wales
• Time Limit: The parties must have been married for at least one year before divorce proceedings can be commenced.
• Sole and Joint Applications: Until the law changed, all divorces were applied for solely by one party. However, no-fault divorce introduced for the first time the possibility of both parties applying for the divorce jointly. Obviously, this can encourage cooperation and further reduce the likelihood of animosity between the parties, and should therefore be considered in all cases. At present about a quarter of all divorce applications are made jointly.

3. Step-by-Step Through the Divorce Process

3.1. Stage 1: The Application (Sole or Joint)

• Application: The divorce process is begun by filing the divorce application, either online or by post. The application includes a statement that the marriage has irretrievably broken down. (Note the change of terminology from the old divorce system: the ‘Petitioner’ is now the Applicant, and the ‘Petition’ is the Application.)
• Marriage Certificate: You will also need to file your original marriage certificate, or a certified copy (for online applications you will upload a clear image of the certificate).
• Court Fee: A fee is payable on the application. The fee is currently £612, but this is subject to change. You may be able to get help with fees if you get benefits, or are on a low income.

3.2: Stage 2: The Court Processes the Application

Once the court receives the application it will process it. Exactly what the court does will depend upon whether it is a joint or sole application.

• Joint Applications: The court will check the application, and if it is correct, it will send both parties a notice that the application has been issued.
• Sole Applications: Again, the court will check the application. If it is correct, it will send the applicant a notice that the application has been issued. The court will also send the application to other party (the ‘Respondent’), along with an ‘acknowledgement of service’ notification. The other party must respond to the acknowledgement of service notification within 14 days, stating whether they intend to dispute the divorce (see section 4.3, below).

3.3. Stage 3: The Mandatory 20-Week Reflection Period

Before the divorce can proceed, a mandatory 20-week ‘period for reflection’ must have passed since the date that the divorce application was issued.

The reflection period is designed to encourage both reconciliation (if possible) and, more practically, to facilitate discussions between the parties regarding finances and children.

3.4. Stage 4: The Conditional Order

After the 20-week period has ended the applicant(s) may apply for the Conditional Order (formerly known as the ‘Decree Nisi’).

If it is satisfied that the divorce can proceed, the court will fix a date for the Conditional Order to be granted. The Conditional Order does not end the marriage – it merely confirms that the applicant is entitled to a divorce.

3.5. Stage 5: The Final Order

Six weeks and one day after the Conditional Order has been granted the applicant(s) may apply for the Final Order (formerly known as the ‘Decree Absolute’). This is the document that legally dissolves the marriage.

Important Note: It is essential that all financial arrangements have been sorted outbefore applying for the Final Order, to protect future financial claims.

4. Frequently Asked Questions

4.1. How Long Does a No-Fault Divorce Take?

As seen above, the divorce process must take at least 26 weeks, or six months. In reality, however, it is likely to take somewhat longer.

Firstly, there will be delays when the court has to take action. For example, it may take several weeks for the court to review the application for a Conditional Order.

Secondly, and more importantly, it may be necessary to delay applying for the Final Order until all financial arrangements have been sorted out, as mentioned above. This could mean that the divorce will not be finalised for many months after it was first possible to apply for the Final Order, especially if financial arrangements cannot be agreed.

4.2. What if I don’t know where my spouse is?

When you make a divorce application you will need to give your spouse’s address, so that the court knows where to send the papers. But what if you don’t know where your spouse is living?

In such a situation the court will expect you to make all reasonable efforts to find your spouse, such as contacting relatives, friends, or their last known employer. If all of these efforts fail then you can ask the court to dispense with service of the divorce papers upon your spouse, thereby enabling the divorce to proceed.

4.3. Can My Spouse Stop the Divorce?

One of the big changes brought in with no-fault divorce is that it is no longer possible to defend a divorce. Your spouse cannot therefore prevent or delay the divorce simply because they do not agree with it.

In fact, there are only two situations in which a divorce can be disputed, and both are very rare:

• Jurisdiction: If the Respondent does not believe that the courts have jurisdiction to deal with the divorce; or
• Invalid Marriage: If the Respondent can prove the marriage was never valid.

4.4. What if my spouse does not respond to the divorce papers?

Before the court can make a Conditional Order, it must be satisfied that your spouse has received the divorce papers. Obviously, this is not a problem if they have completed and returned the acknowledgement of service notification, but what if they have not?

In such a situation you will need to prove that your spouse has received the divorce papers, for example by having them personally served upon them. You will then be able to proceed with the divorce, even if your spouse still fails to respond.

4.4. Does No-Fault Divorce Affect Finances or Children?

The simple answer to this is: No-fault divorce does not affect finances or arrangements for children. The divorce itself is a legal process for ending the marriage status – it is entirely separate from arrangements for money, property, and children.

4.5. Does it matter who makes the divorce application?

If it is a sole application, then the party who issues it is obviously in control of the process, at least to an extent. However, apart from that it does not make any difference who makes the divorce application. In particular, it will have no bearing upon the financial settlement, or arrangements for any children.

4.6. Will I have to attend court?

The answer to this will almost certainly be no, you will not have to attend court in connection with the divorce process. But if there is any dispute over finances or arrangements for children then you may have to attend court in connection with that.

5. How Walker Family Law Can Help

There are many ways in which we can help anyone going through the divorce process, including:

5.1. Dealing with the Application for you

We can take away the stress of the divorce process by dealing with it for you, including completing all of the divorce forms, handling all court communications, and ensuring that deadlines are met, such as the 20-week reflection period, and the period between the Conditional Order and applying for the Final Order.

5.2. Sorting out arrangements for children and finances

For most couples divorce is not just about the process of dissolving the marriage. Arrangements for children and finances will also have to be sorted out. We can help you with these, including providing expert advice, negotiating with the other party or their solicitors, preparing court documents, and representing you at court.

5.3. Helping you resolve these matters out of court

Obviously, contested court proceedings can be very stressful, time-consuming, and expensive. We therefore offer various alternatives to court, for details of which see this page.

To find out how we can help you, arrange to speak to one of our specialist divorce lawyers by filling in the form, here.