For those who are not aware, the divorce laws in England and Wales changed fundamentally last year.
The old fault-based divorce system, which had been in existence in various forms ever since the civil courts have been able to grant divorces, was swept away and replaced with a new no-fault divorce system.
Under the new system the ground for divorce is still the same as before: that the marriage has broken down irretrievably.
However, it is no longer necessary to prove that the marriage has irretrievably broken down, for example because of the other party’s adultery or unreasonable behaviour. Blaming the other party for the marriage breakdown is now a thing of the past.
Anyone making a divorce application now will know what this means. But what does it mean for the other party (known as ‘the respondent’). What do they do when they receive divorce papers?
Divorce proceedings are now begun by an application to the court, accompanied by a statement by the applicant that the marriage has broken down irretrievably. The court must accept that statement as proof that the marriage has broken down irretrievably.
(Note that it is now possible for both parties to make a joint application, but this post will only deal with applications by one party.)
The court will send a copy of the divorce application to the respondent, together with a ‘notice of proceedings’ (which tells the respondent the case number, and what they should do next), and an ‘acknowledgment of service’ form.
Within 14 days of receiving the notice of proceedings the respondent must complete the acknowledgment of service and return it to the court (whether online, or post).
As the name suggests, the acknowledgment of service form confirms that the respondent has received the divorce application. The form also asks a number of other questions, in particular whether the respondent intends to dispute the divorce.
Note, however, that the respondent can only dispute the divorce in very limited circumstances: if they do not believe that the courts have jurisdiction to deal with the divorce, if they can prove that the marriage was never valid, or if the marriage has already legally ended. If any of these is the case, the respondent must file an answer to the divorce application with the court, together with a court fee.
The respondent has one other option: to start divorce proceedings themselves, although they will need the permission of the court to do this.
If the respondent fails to return the acknowledgment of service within 14 days of receipt then the divorce can still continue, if the court decides that the respondent received the application. The court might deliver the papers personally to the respondent, so that there’s proof they have received them. The respondent might have to pay the cost of this.
If the acknowledgment of service is returned and the respondent is not disputing the divorce the other party can apply for the conditional divorce order 20 weeks after the divorce was started. After 6 weeks have elapsed from the conditional order they can apply for the final divorce order. Obviously, the court will send copies of the conditional and final orders to the respondent.
As indicated above, the respondent does not have the option to defend the divorce simply because they believe that the marriage has not irretrievably broken down.
This is one of the major changes brought in by the no-fault divorce system. Previously, a respondent could defend, claiming that the other party had not proved that the marriage had irretrievably broken down.
The court would then have to fix a hearing to decide the matter, and could refuse the divorce if it found that the applicant (then known as ‘the petitioner’) had not proved that the marriage had irretrievably broken down.
All of that has now changed. A divorce can now only be disputed in the very limited circumstances mentioned above.
Of course there is usually much more to a divorce than simply dissolving the marriage.
In particular, arrangements will have to be made for any dependent children, including with whom they should live, and to sort out finances and property following the divorce.
If you receive a divorce application then you should seek expert legal advice regarding these matters, if you have not done so already.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice, please contact the team.