The law on divorce in England and Wales is changing after over 50 years. The new rules (Divorce, Dissolution and Separation Act 2020) will come into force on 6th April 2022, with the last day for filing divorce applications under the current rules being a week before, on 31st March 2022.
One of the main complete changes will be the removal of the requirement to prove the separation period or conduct of the other spouse.
Currently, there is only one ground for divorce, the irretrievable breakdown of the marriage. To prove this, the Petitioner, who under the new rules will be called “the Applicant”, must rely on one of the current five reasons, two of them being fault based (“unreasonable behaviour”, “adultery” and “desertion”) and three no-fault based (“separation of over 2 years with consent” and “separation of over 5 years without consent”). The latter are based on different lengthy separation periods. The first two, however, place the blame entirely on the Respondent and they are Adultery and Unreasonable Behaviour.
At present, almost 75% of divorces are fault based, blaming the spouse for the breakdown of the marriage. This has been considered by many to be a burden, a distorted portrayal of reality, and an unfair scenario for Respondent who must take the blame. It often causes difficulties in the parties agreeing on the petition and the allegations made within it. In addition, playing ‘the blame game’ has more often than not created friction between the spouses, and has had a negative impact on the adjacent matters, such as financial and children arrangements.
Sometimes, the breakdown happens organically, the spouses grow apart, compatibility ceases to exist, perspectives and priorities change, or the initial strong feelings are simply no longer there. It is for this reason that throughout the years, many have supported the idea of a no-fault divorce being introduced, to enable married couples to go through a divorce without having to blame one another.
The new rules will dramatically change the way that divorce takes place as this will now be entirely based on no-fault which eliminates the “blame game” often encountered in divorce proceedings. This means that all that will be required will be for at least one of the spouses to issue an application confirming that the marriage has broken down. No evidence will be required for this beyond a statement.
This will be specifically welcomed by those couples who, because they cannot or would not allege any of the fault-based grounds, have to stay married and wait for at least two years of marriage to have lapsed before they can begin the divorce process.
The fact that the Applicant will no longer need to make allegations against their spouse, is hoped to reduce acrimony and allow the parties to focus on the possible connected arrangements required, such as financial or children.
Another major change brought by the new rules will be the removal of the ability to defend the divorce. After 6th April, the divorce cannot be challenged. A respondent may only ‘dispute’ the divorce on jurisdictional grounds, based on the validity of the marriage, or the fact that the marriage has already legally ended.
For the first time ever, a couple will be able to submit a joint application meaning that they both apply for the divorce, dissolution, or separation.
Once the application is issued, the parties will need to wait a minimum of 20 weeks before applying for the Decree Nisi which under the new rules will be called the “Conditional Order”. This will be seen as a “cool off” or reflection period during which they may consider reconciliation, should they wish to do so. The minimum waiting period between the pronouncement of the Conditional Order and the Final Order (the old Decree Absolute) remains at 6 weeks. This means that the new divorce process will be lengthier and will take a minimum of 6 months to complete, compared to the current 3-4 months.
Proceedings issued before 5th April 2022 will continue to progress under the previous law. These applications will not be impacted on by the new rules.
The entire process will now take place online, digitalising all communication between the court and the parties and therefore eliminating the delays incurred by documentation being sent in the post. The new platform service is expected to go live on 6th April 2022 and can only be used for divorce proceedings. There will be new forms and new procedures in place, as well as changes related to how papers can be served on the other spouse.
In relation to costs, no changes have been announced thus far, meaning that the minimum a couple will need to pay for a divorce will be the current court fee of £593. Some consider the unchanged court fee to be unreasonably high for the new simplified process, however, this will stay the same for the foreseeable future. The new rules will therefore entirely remove the adversarial basis of many divorce cases, which is why they have consequently been named the biggest change in the divorce law in over half a century.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain.
She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco.
The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco.
Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million.
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.
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