Going through a divorce can be a challenging and emotional experience for separating couples who decide they wish to end the marriage. Not only are the couple having to deal with the breakdown of the marriage but they are then faced with the stress of navigating the complexities of the divorce process itself.

A monumental change in the divorce laws in England and Wales came into effect on 6 April 2022, which introduced the no-fault divorce pursuant to the Divorce, Dissolution and Separation Act 2020. This reform has removed the requirement for separating couples to assign blame for the breakdown of the marriage, eliminating the need to provide evidence of conduct, unreasonable behaviour, adultery or separation.

The aim of the new law is to remove as much conflict and hostility from divorce proceedings as possible so that separating couples can focus on the practical arrangements for the care of their children and the financial arrangements that need to be put into place for them to be able to live separately and apart post-separation. We know that there are no winners in this situation and each family is unique so there is no one-size-fits all solution

Divorce, Dissolution and Separation Act 2020

Under Section 1(3) of the Matrimonial Causes Act 1973 (as amended by the Divorce, Dissolution and Separation Act 2020), a party seeking to divorce only needs to assert that the marriage has broken down irretrievably.

Under the new law, couples can apply jointly or individually for a divorce, streamlining the process. As empathised by Juliet Harvey, the former national chair of Resolution, this change to the law “will result in a kinder, less adversarial divorce process in England and Wales.”

In order to commence divorce proceedings in the UK courts, the following criteria have to apply:

1. The couple must have been married for a minimum of one year;
2. At least one of the parties must be a permanent resident of England and Wales; and
3. The marriage must be recognised as legally valid in England and Wales.

The process

In accordance with the overriding objecting, the Family Court is instructed to deal with cases expeditiously. Divorce proceedings now take a minimum of twenty-six weeks to be finalised as this includes a mandatory twenty-week ‘period of reflection’ to allow couples to finalise matters involving arrangements concerning children and finances, i.e., dividing assets, liabilities and ongoing financial obligations before obtaining a final order for their divorce. Following the grant of the conditional order, there is then a further six week and one day period before a final order will be granted which ends the marriage. If financial provisions have not been reached during this timescale, the final order relating to the divorce can be delayed further. Pursuant to section 10(3) of the Matrimonial Causes Act 1973 (as amended), the respondent can lodge an application to delay the final order being made. The court must not finalise the final order unless it is satisfied that the financial provision made by the applicant for the respondent is reasonable, fair or the best that can be made under the circumstances.

Sole or Joint Divorce Application

• Sole Application: The applicant applies for divorce under the sole application process. The application outlines that the marriage has broken down irretrievably. The sole application is then issued by the court before it is served on the respondent. The respondent will then have to acknowledge receipt of the divorce application in order for the divorce to proceed to the second stage, the condition order stage.
• Joint Application: If the parties issue a joint application, the divorce application will then be sent to you both for acknowledgement.

Conditional Order

A conditional order can be applied for 20 weeks after the divorce application has been issued. A conditional order confirms that the parties have met all the legal requirements for a divorce in England and Wales. However, it does not mean the divorce is finalised.

Final Order

The final stage involves applying for a final order which will dissolve the marriage and as such the parties will no longer be married. This is obtained at least six weeks and one day after obtaining the conditional order, however this should not be sought until the parties have reached an agreement in respect of their finances. Once a final order has been obtained, it means the couple are no longer married and free to re-marry.

Benefits of a no-fault divorce

The introduction of no-fault divorce ensures that a couple can obtain a divorce without the need to prove fault and for some couples, this can make the process less contentious. There is no requirement to blame one party for the failure of the marriage and this can help couples to act amicably and work efficiently to resolve their financial matters. This is very important for parties who have children and will need to co-parent following the conclusion of the marriage.

Exceptions when it can be contested

Under the new rule 7.1 (3) (b) of the Family Procedure (Amendment) Rules 2022, a spouse may dispute a divorce in England and Wales on procedure grounds and not simply because one spouse does not want to divorce. Further, the divorce can only be contested only if the application has been issued on a sole basis. The spouse contesting the divorce must satisfy one of the following criteria:

1. Jurisdiction: The Court does not have the jurisdiction to entertain the proceedings. For example, you or your partner do not habitually reside in England or Wales. If you or your partner reside in England or Wales, then you or your partner have had to reside there for at least a year immediately before lodging the divorce application. Alternatively, you or your partner have domiciled and habitually resided in the UK for at least six months immediately before lodging the divorce application at court.
2. Void marriage: The marriage is void or not recognised as valid in the courts of England and Wales. This can occur if your marriage amounts to a religious ceremony only or where the marriage has not been conducted within the law of the country the couple married in.
3. Already divorced: The marriage has already legally ended. For example, you are already divorced in another country.

How we can help

At Hopkin Murray Beskine solicitors, we have a team of experienced family law specialists, who are Resolution or Law Society accredited who understand the stress of facing a divorce and separation to make the process simple, hassle-free and affordable. In some situations, we can also offer legal aid. If you need advice, contact us via email or 020 7272 1234

By our Family Law Solicitors & Melissa Jarvis, Paralegal