The Divorce, Dissolution and Separation Act 2020, which was passed by Parliament as long ago as June 2020, will come into effect today (6 April 2022). This legislation was originally due to come into force in autumn 2021, but this was delayed by government officials by 6 months. This is being viewed as a watershed moment for divorce law in England and Wales.
This Act will reform outdated divorce and dissolution law, so that those ending their marriage or civil partnership will no longer have to give examples of bad behaviour by one of the spouses/civil partners or face waiting up to two years.
There has been a debate about the need to reform divorce and dissolution laws in England and Wales for many years. This discussion was reinvigorated after the Supreme Court’s decision in July 2018 in the case of Owens v Owens  UKSC 41.
This case made headline news. That in the 21st century a wife was being prevented from divorcing because the court considered that the examples of ‘unreasonable behaviour’ Mrs Owens had cited in her divorce petition were insufficient, was at best concerning and at worst outrageous. This gave new impetus to those campaigning for change. After all, the law governing divorce had been in place for nearly 50 years; society has changed significantly since 1973 and it was time family law caught up. Finally, it is starting to.
So what does this all mean for spouses and civil partners if they are looking to end their marriage/civil partnership from 6 April 2022?
The law: what will change?
The Matrimonial Causes Act 1973 set out the criteria that a spouse had to meet in order to petition for divorce/dissolution pre 6 April 2022 (and the Civil Partnership Act 2004 contains analogous provisions). It was a two-step process:
- There was only one ground for divorce/dissolution in England and Wales – that the marriage/civil partnership had broken down irretrievably. This will not change under the new legislation.
- The petitioning spouse/partner had to satisfy the court that at least one of the following facts had been established: (a) adultery; (b) unreasonable behaviour; (c) desertion (for two years); (d) two years separation (if the other spouse/partner consents to the divorce/dissolution); and (e) five years separation (if the other spouse/partner does not consent to the divorce/dissolution). This is where the most significant change is.
Under the ‘old rules’ if a spouse/partner wished to divorce/dissolve their civil partnership within two years (or in some circumstances five years) of separation, they had to apportion blame on the other party for the breakdown of their marriage/partnership. This meant that in amicable cases one party had to cite “unreasonable behaviour” by the other party during the marriage/partnership, even if such behaviour had no bearing on the breakdown of the marriage/partnership. In acrimonious cases, this requirement (i.e. to apportion blame) often led to the kitchen sink being thrown at the respondent in the divorce/dissolution petition. In neither case was this approach constructive. It frequently resulted in delay and tensions being raised. In extreme cases it led to expensive court proceedings to establish whether the parties could divorce (as in Mrs Owens’ case)/dissolve their civil partnership or who should divorce who. This in turn often impacted on the resolution of any children and/or financial issues. Inflaming tensions between co-parents is the last thing that should happen around the breakdown of a marriage or civil partnership; given the harm that parental conflict can cause to children.
The new law that comes into force today (6 April 2022) will bring the following changes:
- The ‘facts’ requirement will fall away Instead, the applicant or applicants will simply have to attach a statement to their application for a divorce/dissolution stating that the marriage/civil partnership has broken down irretrievably. The court will take the statement to be ‘conclusive evidence that the marriage/civil partnership has broken down irretrievably’. There will no longer be a need to apportion blame if a spouse/civil partner wants to apply for divorce/dissolution immediately, without waiting for two or five years; hence the phrase ‘no-fault divorce’ (or NFD).
- Parties will be able to apply for a divorce/dissolution order together, as joint applicants. This has not been possible before; previously there had to be a petitioner and a respondent. There are pros and cons to this new route to end a marriage/civil partnership, including:
- Pros: (1) it is likely to reduce tension/conflict over the legal process between the parties – getting rid of the blame culture not only in name but in practice; (2) it allows the parties to present their divorce/dissolution as a joint decision, which can be particularly important for people when communicating with their children and family and friends; and (3) it limits the risk of non-cooperation, as there will be no respondent and no opportunity to defend the petition.
- Cons: (1) it may affect the control a party has over the divorce/dissolution proceedings, as the applications for a conditional order and final order have to be made jointly (albeit a joint application can convert into a sole application later in the process if one party does not agree to the application progressing to the next stage); (2) it may be unfair to a vulnerable party; and (3) it is unlikely to be appropriate where there has been domestic abuse and/or there is financial disparity between the parties.
- There will no longer be the option to defend the application for divorce/dissolution, except where the respondent asserts that the marriage was not valid or that the English and Welsh Courts do not have jurisdiction to consider such an application. Going forwards, no-one can argue that the marriage has not irretrievably broken down if the other party is saying it has, so no-one will be subjected to the court proceedings that Mrs Owens had to endure.
These updates reflect the changes in society witnessed over the last 50 years. Individuals are given autonomy to choose if they wish to stay married (or in a civil partnership) or not, without their spouse/civil partner being able to force them to remain married (or in a civil partnership) against their wishes. This is a particularly important development for individuals in controlling relationships, on which a light has been shone in recent years.
The terminology: what will change?
It is clear that, with this reform, the government is hoping to simplify the language used in the legislation so that it is easier to understand. The main changes to note are:
|Wording under the Matrimonial Causes Act 1973 / Civil Partnership Act 2004||
Wording under the Divorce, Dissolution and Separation Act 2020
|Petition for divorce/ dissolution||
Application for a divorce/dissolution order
A conditional divorce/dissolution order
|A final divorce/dissolution order|
|Decree of nullity||
Nullity of marriage/civil partnership order
|Decree of judicial separation||
Judicial separation order
It is important that this area of law starts to feel more accessible to people. Many people in marriages or civil partnerships who wish to apply for a divorce/dissolution may not be able to afford to instruct a solicitor to represent them. Without access to legal advice, they are left navigating the process alone. Ensuring that it is possible for the majority of people to understand the terminology used in the legislation is crucial for this reason alone.
The timescales: what will change?
Once an application has been made by one or both spouses/civil partners, the new legislation imposes timescales on when the court can grant decrees/orders. The first deadline to have in mind is that the application for a divorce order must be served on the respondent (in the case of a sole application) or the other applicant (in the case of a joint application) within 28 days of the application being issued by the court. Once the application has been served, the receiving party will then have 14 days to complete and submit their acknowledgement of service (and in disputed proceedings, 35 days to submit their Answer).
From 6 April 2022, the court will not be able to make the conditional order (formerly decree nisi) within 20 weeks of the start of the divorce proceedings. Some have suggested that this may slow down the process of obtaining the final order (formerly decree absolute). However, the court system is so overwhelmed that there is a significant backlog when processing applications for decree nisi (now called a conditional court order). Indeed, before petitions could be submitted online, on average (purely for the procedure to take place) it took 1 year for a petition to proceed to decree absolute (and there are no doubt cases where it took significantly longer). So, it is not expected that there will in fact be an increase in the length of time it takes parties to legally end their marriage/civil partnership. Once the conditional order (formerly decree nisi) has been obtained, parties will be able to apply for the final order after six weeks (as was the case under the ‘old rules’).
It is important to keep in mind that in parallel to the divorce/dissolution proceedings, most spouses/civil partners will be trying to negotiate a financial settlement and in some cases child arrangements. This often takes longer (sometimes substantially longer) than the 26 week minimum period in which a divorce can be obtained under the ‘new rules’. As such, the fact that there remains an in-built ‘cooling-off’ period within the divorce legislation of around six months/26 weeks is unlikely to delay the conclusion of the divorce/dissolution proceedings.
New online divorce/dissolution portal
Furthermore, from 13 September 2021 Her Majesty’s Courts and Tribunals Service (HMCTS) have required legal representatives to file and progress their clients’ petitions using the new online service rather than using paper forms which were previously completed and posted to the court. This option is also available to litigants in person, albeit they have the choice of whether to submit their application online or using the paper form. This was a change that was expedited by Covid restrictions and the shift to dealing with matters “online” where possible. Our experience is that moving the divorce process online has helped to reduce some of the backlogs and waiting times, which is certainly positive.
A new HMCTS online divorce/dissolution portal is due to go live on 6 April 2022 in order to reflect the changes to the law.
One of the most notable changes on the new portal is that civil partners will be able to use the online system, rather than having to use paper forms to apply to dissolve their partnership. This is a huge step forwards.
Costs: what will change?
Under the ‘old rules’, in their divorce/dissolution petition a spouse/civil partner could apply for the respondent to pay their costs. It is important to note here that this only related to the costs of the divorce/dissolution proceedings (i.e. the petition costs, which is a fee payable to the court – currently £593 – and any legal fees incurred, for example preparing the petition and decree nisi and decree absolute applications). This has nothing to do with the far higher costs a spouse/civil partner may incur in relation to financial negotiations/proceedings.
However, it was often the case that the judge considering the petition and application for decree nisi would order that the respondent had to pay the petitioner’s costs because, after all, the respondent was accused of being responsible for breakdown of the marriage (and was allowing the petition to proceed on that basis).
The issue of costs has been considered within the ‘Finding Fault’ study undertaken by the Nuffield Foundation.
In light of the fact that under the new NFD rules, no-one is being blamed for the breakdown of the marriage, it is anticipated that the new standard in uncontested cases will be that there is no order as to costs. This does not stop the parties reaching an agreement as to how these costs will be met themselves (although the applicant, or applicant 1 in cases of joint applications, will have to pay the fee to the court to progress the application – this cannot be split by the court).
It is important to note that there will no longer be the option of applying for a costs order against the respondent within the application for a divorce/dissolution order. Instead, if the parties cannot reach agreement as to how these costs should be met themselves, a separate application for costs will have to be made, and this has to have been done before the final order is granted. It is expected that the only circumstance in which the court will consider an application for costs within divorce/dissolution proceedings will be where there has been litigation misconduct by the other party, e.g. the respondent has evaded service or caused the applicant’s costs to increase by delaying the proceedings unreasonably in another way.
The changes to divorce/dissolution law in England and Wales have been welcomed by most. It is widely considered that the law relating this area, which came into force within the Matrimonial Causes Act 1973 (and subsequently the Civil Partnership Act 2004), is outdated and needs to be brought up-to-date. Society has perhaps never advanced more rapidly than it has over the past 50 years; the law must keep up. With the coming into force of the Divorce, Dissolution and Separation Act 2020, people will finally have the change they have been demanding.
From today (6 April 2022), this new law will see divorce/dissolution proceedings commence in a more amicable, efficient and collaborative way, setting a far more constructive tone for the remainder of the negotiations and/or proceedings, whether about finances or children, than was afforded under the previous law. It is sincerely hoped that this change in legislation will see a change in culture – it will at least reduce, if not eliminate the animosity at the outset caused by the adversarial nature of divorce/dissolution petitions under the ‘old law’. It gives divorcing couples, finally, the chance to start off their discussions about divorcing on the right foot.