Solicitor Elizabeth Owen, in our Family Law team, provides a helpful introduction to the ‘No Fault Divorce’ system.
Not since Handel’s ‘Arrival of the Queen of Sheba’ has an entrance been announced with such fanfare as that that of the ‘No Fault Divorce’ system into the world of Family Law.
But what does this new system actually mean in practice to a couple seeking to divorce?
Here are some things to consider...
6 month timescale
In terms of timescales, a couple seeking to divorce now will have to wait a minimum period of 20 weeks before they can apply for the ‘Conditional Order’. This is the Order that is needed for divorcing couples to be able to turn any agreements about matrimonial finances into a legally binding document.
There will then be a further 6 weeks before the ‘Final Order’ – the Order that legally dissolves the marriage – can be applied for.
In other words, there will be a minimum 6 month wait between issuing a divorce and the Final Divorce Order.
Those wanting to make arrangements as quickly as possible will have to bear this in mind and should factor this timescale into discussions and decisions about how they are going to deal with the matrimonial assets post-divorce.
Please note, you will still have to wait a year after marriage before you are able to apply for divorce.
Joint applications
Divorcing couples will now be able to apply for divorce ‘jointly’. What this means is that the system where a petition is filed by one party and then sent to the other is changing so that spouses can choose to, essentially, both be put down on the form at the same time and submit the application ‘together’.
Couples should understand, however, that under the new system the application will still separate couples into ‘Applicant 1’ and ‘Applicant 2’.
In practice this means that ‘Applicant 1’ will complete the divorce application which will then be sent to ‘Applicant 2’ to check the details. Once approved the application goes back to ‘Applicant 1’ who then progresses the application by submitting it.
The new system will replace the old ‘fact-based’ system of divorce. This means that couples seeking to divorce simply need to provide a statement of the irretrievable breakdown of the marriage, without having to support this assertion with one of the previously required ‘facts’. The intention behind this is to try and emotionally neutralise the process of divorcing by ensuring that there is no need for one party to apportion blame on the other, as some of the ‘facts’ under the old divorce system require.
Completing the application should, in theory then, be totally anodyne. The irretrievable breakdown statement will just be a box to tick, and the rest will be straightforward information about the parties’ names, addresses, date of marriage, etc.
However, those who might wish to make a joint application should consider having an initial discussion and agree who is going to be ‘Applicant 1’ and ‘Applicant 2’.
When two become one
Where an application is started on a joint basis it can, at a later date, be converted to an application on a sole basis. However, a ‘sole application’ – that is, one filed by just one of the spouses - cannot be converted into a joint application at a later date.
Service of the application
Once the application is submitted it will then be issued by the court.
From the date of issue, the court has to serve the application on the respondent, or both parties if a joint application, within 28 days.
Service by the court will now be by email and that email address should be the respondent’s ‘usual’ email address; it should be their personal email address, not their work email address. Where an application is served by email, the respondent must also be sent a postal notification to let them know that the application has been sent by email.
If there are issues with service, for example, if the respondent later claims not to have received the application, this is likely to cause delays in progressing the divorce.
If there are any issues with service applicants should be aware that the 28 day clock continues to countdown from the day the application is issued. Applicants can apply for an extension, but if the court refuses the extension, the divorce cannot proceed and the applicant must re-issue.
If in any doubt, it might be sensible to seek legal advice at the outset. Our specialist family lawyers will be able to advise and assist with ensuring that issues which might arise due to service can be avoided or quickly dealt with.
Costs
Who is going to pay? Well, the short answer is the applicant. In the case of a joint application, it will be ‘Applicant 1’. The divorce court fee currently remains at £593.
Can you apply to get the cost reimbursed by the other spouse? The short answer is, no. The longer answer is ‘maybe, in certain but, on the whole, rare circumstances’.
Unfortunately, the pragmatic approach is going to have to be that someone needs to pay the court fee. The actual payment itself will be made by the applicant or by ‘Applicant 1’. The expectation and hope is that parties agree between themselves how to share that cost and the mechanics of that.
Can I stop the divorce if I don’t agree with it?
In short, no. There are circumstances where the divorce can be ‘disputed’ under the new system. However, a divorce can now only be disputed on the basis of jurisdiction, the validity of the marriage or Civil Partnership, or where the marriage or Civil Partnership has already legally ended.
If you think these circumstances apply to you, a member of our specialist family team will be able to assist.
In summary
The big hope for the new divorce system is that it removes focus away from conduct during the course of the parties’ marriage. The ambition is that this will allow divorcing couples to discuss financial and children arrangements without one having already hurled a distracting bad behaviour hot potato over the fence of the other.
The practicalities of this new arrangement appear to steer the parties to greater degree of co-operation. For example, with the joint application. This is wonderful and in the vast majority of cases, it is hoped that the new system will be a genuine improvement.
However, the very nature of separation, unfortunately, will mean that co-operation might not be possible or, indeed, preferable to some. It is in those circumstances where the practicalities will, for all intents and purposes, look and feel quite familiar to the current system, albeit now only having to assert the irretrievable breakdown of the marriage.
The big practical changes for the vast majority of cases with a sole applicant are going to be around service of the application and the timescales for this.
If you are considering a divorce and would like to find out more, our specialist Family Law team can help.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
