No Fault Divorce

12 Oct 2022

On 6 April 2022 ‘no fault divorce’ came into force. 

Described as a landmark reform of divorce law having removed the need to assign blame altogether. 

Previously if parties wanted to divorce and they had not been separated for two years or more, and adultery was not applicable, one party would have to cite particulars of the other party’s behaviour to prove the marriage had broken down irretrievably, which could result in acrimony being created where none previously existed.  Under the new law no reasons need to be given for the irretrievable breakdown of the marriage.  It now simply has to be confirmed by one party that the marriage has irretrievably broken down.

Under the new law there is the option to start proceedings on a joint basis.  If a joint application is made, both parties are equally responsible for the application and can decide how the Court fee and legal costs associated with the divorce are to be paid.  If during the process one of the parties decides they do not want to progress the divorce, the application can be converted to a sole application at the stage of applying for the Conditional Order or the Final Order.

If an application is being made on a sole basis the applicant is responsible for paying the Court fee and their own legal costs.  

Once the divorce application is issued by the Court the applicant(s) has to wait until 20 weeks have elapsed from the date of issue to apply for the Conditional Order.  If an application is being taken on a sole basis, the respondent must confirm that they have received the divorce papers by returning an Acknowledgement of Service to the Court.  There is no longer the option for the respondent to defend the divorce.  A divorce can now only be disputed on very limited grounds such as jurisdiction or the validity of the marriage.  If the Respondent refuses to respond there are measures that can be taken to progress the divorce such as making an application for Deemed Service or to Dispense with Service.

Once the 20 weeks have elapsed and the Court are satisfied that the respondent has received the divorce papers, the Conditional Order can be applied for.  The Conditional Order is the point of the divorce at which the Court is satisfied that the applicant(s) is entitled to a divorce, but the divorce is not yet final.  The Conditional Order used to be known as the Decree Nisi and it is the stage of the divorce at which the Court can consider a Financial Order. 

It is important to bear in mind that a divorce will only end a marriage and will not end financial claims which exist between the parties.  By virtue of marriage parties have claims to all of each other’s financial assets, including pensions.  The only way that financial claims will be brought to an end is with a separate Order dealing with the finances being made by the Court.  If the parties agree on a settlement then an Order can be made by consent, and is known as a  Financial Order.  If parties cannot agree on a settlement then Court proceedings may be necessary to achieve a resolution.  It is important that advice is taken from a lawyer in relation to a settlement and the preparation of an order as once a Consent Order is made it is final and binding on both parties. 

A further six weeks from the Conditional Order must elapse before the Final Order can be applied for.  This was previously known as the Decree Absolute and brings an end to the marriage. For a variety of reasons, it may be advantageous to wait until there is a financial order in place before the Final Order is applied for and this is something that should be discussed with a lawyer.

This information article was prepared by Catherine Wadland at Wolferstans Solicitors.

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