A divorce is the legal end to a marriage which is accessible only through Court. In the past few years, the existing divorce laws under Matrimonial Act 1973 have been under a significant level of scrutiny due to their fault based nature, and because they promote a blameworthy culture between the divorcing couple. The new laws under Divorce, Dissolution and Separation Act 2020 which will come into force in April 2022, removes the need to apportion blame, and provides a premise for a swift resolution, minimising the impact upon children, if any involved, and enabling parties to move on as the option to contest has also been removed. This article will evaluate the changes introduced by the new law, as well as the process involved, and the implications of it upon parties subject to it. The same changes have been instituted for dissolution and judicial separation orders.
An overview of the new divorce process (from April 2022):
There are four steps involved in acquiring a divorce:
Filing a divorce application
An online application or Form D8 must be completed by the party requesting divorce and be filed at their regional divorce centre. This is a specific requirement if a party is legally represented, or if it is applying to end a Civil Partnership. Once the new laws take effect, an application can be made by both divorcing couple, as opposed to one under the current laws, reflecting that there is a move towards a reconciliatory process.
The form will request the party to set out the reasons for wanting a divorce and how they intend on dealing with children and finances. In order to submit an application, the marriage certificate needs to be provided and a fee of £550.00 will need to be paid.
There is an eligibility criteria in law which must be met for a party to be entitled to a divorce:
- they have been married for over a year
- if the marriage is legally recognised in the UK
- if the UK is the party’s permanent home or that of their spouse and
- if their marriage has permanently broken down.
The only ground for a divorce is the permanent break down of marriage. Under the existing law, it is necessary for the applicant to prove fault by evidencing adultery, desertion, separation for either two years if divorce is agreed, or five years, if not agreed, and unreasonable behaviour due to domestic violence, drug-taking, refusal to pay towards living costs, and/or verbal abuse.
From April 2022, there will no longer be a requirement for the party to prove fault, and they will instead need to make a statement of irretrievable breakdown of marriage or a joint statement, if both parties have applied for a divorce.
- Husband or wife responds
After receiving the application, the court will notify the other party of receipt, and will require an acknowledgement of service, and a response being sent by them. The responding party will need to indicate that it has received the divorce papers, is satisfied with the reason for divorce and indicate if it agrees or contests the divorce. The response must be sent within 8 days of receiving the application form if filed by post, or 7 days if submitted online. If a party disagrees with the divorce, it must complete an ‘answer to divorce’ form. Alternatively, the applicant can proceed by applying for a decree nisi.
One of the fundamental changes under the new law is that the option to contest divorce will no longer be available to parties, to prevent them from manipulating the process, especially domestic abusers who seek to control their victim.
Apply for decree nisi (known as Conditional decree of divorce after Autumn 2022)
This is the penultimate stage of the process which represents that neither party disputes the proceedings and that the court sees no issue with a divorce being granted.
As it stands under the current divorce laws, an application during this stage will need to confirm that the information provided in the application form is true by filing a statement, i.e a Statement in support of Divorce/ Judicial Separation on the grounds of adultery. A statement is available for each fault criteria: unreasonable behaviour, desertion, and separation, which will no longer apply after Autumn 2022.
If the judge agrees, the parties are granted a certificate. The couple will then need to apply for a decree absolute which formally finalises the divorce.
Apply for decree absolute (known as Final decree of divorce after Autumn 2022)
This is the final step to the divorce process and is the legal document which officially ends the marriage.
In this stage, the court will ascertain if all time limits have been abided by and will check to see if there are any other reasons to deny divorce. Once the final decree, formerly known as decree absolute, has been granted, the couple are officially relieved from their matrimonial obligations.
The motivation for reform
The case of Owens v Owens (2018) demonstrated the need to reform ‘ no fault’ divorces. In this case, the court refused to grant Mrs. Owens a divorce, even though her marriage had incontestably broken down, because she failed to demonstrate that her husband behaved in an unreasonable way and that she could not be expected to live with him. The case was appealed to the Supreme Court where it also failed, with Lady Hale stating that “It is not for us to change the law laid down by Parliament – our role is to only interpret and apply the law that the parliament has given us”.
The decision inspired widespread publicity, due to the conspicuous unfairness towards Mrs Owens who was forced to remain in a broken-down marriage for five years from the date of separation. Due to the extensive attention, the government published a consultation paper: “Reducing family conflict: Reform of the Legal requirements of Divorce”. Following this paper, a Bill was introduced on 12 June 2019 and received Royal Assent on 25 June 2020.
Summary of Changes under Divorce, Dissolution and Separation Bill 2020
Justice Secretary Robert Buckland QC says that the new laws will make divorce “less traumatic” and “should reduce conflict”. How so?
- A statement confirming that the marriage is beyond repair (statement of an irretrievable breakdown) is the only requirement laid out in the new Act for an individual to be granted a divorce. This effectively removes the need to evidence a fault in the other spouse.
- “Decree nisi” will be referred to as “Conditional Decree” and “Decree Absolute” as “Final Decree”, of divorce in the aim to neutralise the phraseology and make the process reconciliatory.
- The Act introduces a minimum 26-week timeframe for the completion of divorce proceedings. The conditional decree is granted in 20 weeks, and final decree (which confirms the divorce) is concluded in 6 weeks after that. This means that parties will not be expected to wait extensive time periods to formally end their marriage, or go through emotional turmoil longer than desirable.
- It will no longer be possible to contest the divorce under the new Act as a statement of an irretrievable breakdown will be determinative.
- A joint application is possible as per this Act, so one party is not limited to bringing the claim and the couple can apply simultaneously.
What are the implications of these changes?
The introduction of this Act has been a long awaited and necessary to reform the onerous implications of ‘fault divorce’ under the previous laws. Such changes are welcomed in the hope to positively benefit not only the couple, but also their children. Couples will no longer have to wait 2 years after their separation to file for divorce proceedings and it will no longer be possible for another Owens scenario to occur. The process itself has been significantly simplified and is conducive to a swift resolution, also reducing chances to stir more animosity between couples.
Case Citation: Owens v Owens (2018) UKSC 2017/0077
For more information on Child Arrangement Orders, please see here.
This article is intended for guidance only and must not be relied upon for specific advice.