No fault divorce in the UK, which came into force in April 2022 for England and Wales, has hit the headlines as the biggest change in UK divorce law for nearly 50 years. But what does this mean in practice? Is UK no fault divorce really easier for couples when their relationship has completely broken down?
This article will explain what the differences between the old and new procedures are and how mediation can help you make all the decisions that still have to be made around finances and child arrangements as amicably as possible.
What is no-fault divorce?
Under English and Welsh law, the previous route to getting a divorce, which had been in place since 1973, involved one party (the petitioner) stating that the relationship had “irretrievably broken down” and either providing evidence of wrong-doing by the other party (the respondent) – unreasonable behaviour, adultery, desertion – or providing evidence that the two parties have lived apart for two years (or five years if the other party did not agree to the divorce).
Of course, it is often very difficult to cope with a relationship coming to an end, and the old process often heightened – or even created – tension and conflict between the parties, with one party either having to “take the blame” for wrong-doing or both having to stay married for at least two years in a relationship that was already over.
More worrying was the fact that too many people found themselves trapped in an abusive relationship with their abusive spouse contesting the divorce and making the whole process drag out for an unreasonable amount of time, serving only to continue the abuse.
No-fault divorce in the UK from 2022 simplifies and streamlines the process:
- The divorce application can be made online.
- A couple (either one person or jointly) can make a divorce application after they have been married for at least 12 months.
- They have to state in the application that the relationship has “irretrievably broken down”. No other evidence or proof is needed.
- It is not possible to contest the divorce. In very, very rare cases the court might have to decline the application, if for example the English and Welsh courts do not have jurisdiction, or there are problems with the legal validity of the marriage.
- There is a 20-week wait before the Conditional Order (which was called the Decree Nisi under the old procedures) is issued. This is to give the couple time for calm reflection about whether divorce really is the right decision for them, and/or to make other arrangements involved when ending the marriage – e.g., around finances or child arrangements.
- There is a further 6-week wait before the Final Order (previously called the Decree Absolute) is issued. In total, therefore, it usually takes six months from the initial application to receiving the Final Order.
What do I need to prove to divorce my partner?
The new no-fault divorce requirements are that:
- You have been married at least 12 months.
- Your marriage is recognised and valid in England and Wales.
- You confirm in your application that your marriage or civil partnership has broken down irretrievably.
You no longer have to prove that your partner has behaved unreasonably, committed adultery, or anything like that.
My spouse is applying for a divorce. What if I don’t agree?
Under no-fault divorce, it is not possible to contest a divorce application. If you do not agree with your spouse that your marriage or civil partnership has broken down irretrievably, you need to use the 20-week wait before the court will issue a Conditional Order to discuss your differences with your spouse and jointly decide whether divorce is the right way forward for you both. This is a very difficult conversation to raise directly, particularly if communications between you are strained. If this is the case, you could use marriage counseling services.
However, if you think that your marriage has come to an end and divorce is the next step, mediation can be a helpful and effective way to hold these sorts of conversations and find common ground between you. The mediator will help both of you express your views to each other and work out the best way forward with regards to the logistics of your divorce, such as how you will pay for the divorce application, solicitor’s fees, etc. The mediator’s job is not to persuade or influence you one way or the other, but to help you understand each other’s points of view and agree how to move things forward. Remember, mediation is different to counseling; mediation is only used for when the relationship has ended and divorce is the next part of the process.
Why would we need mediation if we both agree to the divorce?
The new no-fault divorce regulations take away much of the conflict around divorce because one party no longer has to be blamed for the relationship ending. However, there are still practical arrangements that you need to agree between yourselves, such as a fair way to divide your assets, whether one of you should pay maintenance to the other, how will you make sure that you each share sufficiently in care arrangements for your children?
Even when you both agree that you need to divorce, conversations about these other matters can still be contentious or difficult. Mediation helps you focus calmly on the issues you need to agree on and come to a fair settlement taking all your circumstances into account. Mediators are completely impartial, so their job is not to act in the interests of one or the other of you and maximise the outcome for one party or the other, which is often what ends up happening when these discussions are argued in court using solicitors.
The agreements you reach through mediation can then be made legally binding through the courts in the form of a financial order made by consent which will protect each of you from claims against future assets or income by your ex-spouse.
What does no-fault divorce cost in the UK?
The court fee to apply for a no-fault divorce is £593 (April 2022). This is the same whether you are making an application in your own name only or a joint application.
You might qualify for a reduction of some or all of the court fee if you do not have much in savings and if you are on a low income or get certain benefits. If you are making a joint application, you will both have to qualify for the reduction in the fee. If one of you does not qualify, the full fee will have to be paid and you would need to agree between you how to split the total fee between you.
If you ask a solicitor to make the application for you, or to advise you about financial or other orders as part of the divorce application, you would have to pay their fees as well as the court fee.
However, if you use mediation to agree the terms of financial or other orders with your spouse and you are on a low income or on certain benefits, you could qualify for Legal Aid which would cover all the costs of your mediation.
No-fault divorce greatly simplifies the process of applying for a divorce. It is no longer necessary to blame one party for wrong-doing and prove this to the court by providing evidence. You just have to have decided that the relationship has irretrievably broken down.
It is a fairly straightforward process to apply for no fault divorce in the UK. The application, and, if applicable, an application for help with the court fees, can be made online.
It is no longer possible to contest, or block, your spouse’s application for a divorce if you do not agree to it. This is particularly helpful to people looking to end an abusive marriage, as it is no longer possible for the abusing party to string out the whole process, making it prohibitively expensive and extending the abuse.
There is a waiting time of at least 20 weeks from the time the divorce application is made before the Conditional Order is made. This gives the couple time to reflect on whether they really do want to divorce, the opportunity to repair their relationship if that is what they want, or time to make suitable arrangements for financial matters and child arrangements if they agree that divorce is the right way forward for them.
Although the process of applying for a divorce is much simpler, other matters such as finances or child arrangements also need to be agreed. Mediation can be a highly effective way for couples to agree a fair and reasonable way to divide their financial assets and make child arrangements that suit all parties and keep the whole divorce process as amicable as possible, as an alternative to instructing solicitors – particularly when both of you agree to the divorce.
Talk to one of our friendly and experienced team on 0113 468 9593 to find out how we can help you.
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Frequently Asked Questions
Does no-fault divorce apply to civil partnerships?
Yes, all the no-fault divorce principles apply equally to ending a civil partnership, which is known as dissolution.
Why does a no-fault divorce take six months even if we agree and are applying jointly?
There is a minimum 20-week interval between applying for a no-fault divorce and the court issuing the Conditional Order. This is equivalent to the Decree Nisi under the old system. This interval is intended to give the divorcing parties chance to reflect and decide whether divorce really is the right solution for them. This also gives time to agree things like finances and child arrangements. The Final Order (formerly Decree Absolute) takes another 6 weeks after that.
Do we still have to use solicitors?
Although it is easier now to apply for a divorce without the help of solicitors, it is usually advisable to get legal advice around financial arrangements and child arrangements. Mediation can be a very cost-effective way of coming to an amicable agreement and the arrangements agreed through mediation can be made legally binding through the courts either alongside the no-fault divorce application or afterwards.
Is Legal Aid available for my no-fault divorce application?
An application for a no-fault divorce costs £593 (April 2022). Legal Aid is not available for this, although you can apply to the court for help with the fees if you are on a low income or on certain benefits and you do not have many savings. This can reduce the amount of fees you pay or cover them completely. Legal Aid is not available for solicitors’ costs connected with a no-fault divorce application, although it is available for mediation costs for those on low income or benefits if you decide to agree financial and other arrangements through mediation.
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