The Divorce, Dissolution and Separation Act 2020 was given Royal Assent and became an Act of Parliament on 25 June 2020 leading the way to a ‘No Fault Divorce’ process.
When you have reached the difficult decision that a marriage is over, the divorce process should be made as painless as possible to enable separating couples to focus on the important issues of how they are going to care for their children and/or manage their future finances. The new Act means that finally couples wishing to divorce will no longer have to apportion blame against each other, with all the conflict, damage and distress that entails.
The new law is not expected to come into force until Autumn 2021 but when it finally does come in, what will it mean for divorcing couples?
There will still be a bar against applying for divorce within the first year of a marriage.
If you have been married for a year, either or both parties to a marriage will be able to apply to the court for a “Divorce Order”, which dissolves the marriage on the ground that it has broken down irretrievably. That application must be accompanied by a statement by one or both parties confirming that the marriage has broken down.
The court dealing with the application must take that statement as conclusive evidence that the marriage has broken down and make a Divorce Order.
A Divorce Order is made up of two parts, a conditional order and a final order. The conditional order is made when the court considers the application for a divorce order with the statement in support.
After the conditional order has been made, the party (if one applied) or parties (if both applied) must wait a period of 6 weeks before applying for the conditional order to be made final.
In any event, there is a mandatory 20-week (approximately 6 month) period between the start of the proceedings and the application for the final order.
The 20 week minimum period between the start of proceedings to application for final order is to allow couples to reflect, turn back, or try to agree important arrangements for the future such as how best to look after their children.
How does this process differ from the current divorce process?
You will no longer need to claim one of ‘five facts’ to prove the irretrievable breakdown of a marriage:-
i. that your spouse has committed adultery;
ii. that your spouse has behaved in such a way that you cannot reasonably be expected to live with them—this is often referred to as unreasonable behaviour;
iii. that your spouse has deserted you for two years;
iv. that you have lived apart for two years and your spouse consents to the divorce; or
v. that you have lived apart for five years.
There will be changes to the legal terminology in that documents previously referred to as Petition, Decree Nisi or Decree Absolute will be replaced by Application for a Divorce Order, Conditional Order and Final Order.
It will no longer be possible to defend a divorce, as the statement made with the application for divorce will be conclusive evidence that a marriage has broken down irretrievably.
The new legislation has, however, retained some provisions under Matrimonial Causes Act 1973 enabling a party to object to a conditional Divorce Order being made final in certain limited circumstances:
To consider one party’s financial position after divorce. This is not to contest the divorce proceedings but a right to postpone the conditional Divorce Order becoming final in appropriate circumstances, for example where one party may lose pension rights on divorce.
In certain cases of religious marriage, to ensure both parties also take the necessary steps to dissolve their religious marriage.
A similar process to the new divorce procedure applies to the dissolution of a Civil Partnership, and the more rarely used Judicial Separation procedure.
The new procedure will not apply to proceedings for divorce that have started before the commencement date, which is yet to be announced.
A key point to highlight, is that divorce proceedings (under the current law and under the new law when it comes into force) do not resolve how your finances will be divided. It is crucial that you consider your financial claims in conjunction with the divorce proceedings. There are risks to finalising your divorce before you have resolved your finances.
To speak with our divorce and finance experts, please call 01752 292201.
Chartered Legal Executive