Next month sees the biggest change in divorce law in England and Wales for over 50 years. You’ve probably heard that ‘no fault’ divorce is coming into effect on 6 April 2022. But what does it mean for you? All your questions are answered in this ultimate guide to no fault divorce.
What will change in April 2022?
Currently, if you want to divorce within two years of separation one party must be shown to be at fault. The ‘petitioner’ of the divorce must provide a reason why the marriage has irretrievably broken down under the categories of ‘adultery’ or ‘unreasonable behaviour’ (or the very rarely used reason of ‘desertion’). The respondent may contest the divorce application.
Under the new law, the grounds for divorce remain the same: irretrievable breakdown. But you will no longer need to provide a reason for the breakdown under the categories of adultery, unreasonable behaviour or desertion.
This reduces the combative nature of the divorce process as it takes away the need for blame. It also removes the opportunity for your spouse to contest the application: a written statement from one or both parties will be taken as sufficient evidence that the marriage has broken down.
The new law will also enable you and your spouse to apply for the divorce application jointly if you wish, setting the scene for a more collaborative divorce process.
How will the process change?
Once the divorce application is filed there will be a minimum time period of 20 weeks before you can move to the next stage. These 20 weeks, the ‘cooling off period’, are intended to allow you and your soon-to-be-ex to reach practical and financial agreements.
Once a minimum of twenty weeks has passed, a ‘Conditional Order’ can be granted. This new terminology replaces the current Decree Nisi, and provides you with a legal entitlement to divorce.
Following another six weeks minimum, the Final Order can be granted, which replaces the Decree Absolute, and signifies the legal end of your marriage.
What will this mean for my divorce?
The intention is that these changes will make divorce a less stressful process. Even in the most amicable of situations, having to cite examples of behaviour unreasonable enough to cause marriage breakdown can bring distress to you and your soon-to-be-ex. Currently, couples wanting to remain amicable either have to wait two years, or find a form of words that placates the judicial system without creating too much emotional heat.
As far as possible the court encourages collaboration. The court system is there for divorcing couples who cannot reach agreement on financial or family matters. But it is intended as a last resort. This move to a no fault application is intended to help set the tone for a calmer, more collaborative culture so more people can divorce without the intervention of courts.
In turn, more collaboration usually equates to less money spent on legal fees. It is also usually a much better approach if there are children involved: children feel more secure when they know their parents are working together and putting their needs first.
What will stay the same?
Much of the rest of the divorce process will stay the same.
You will still need to reach a financial agreement, which can be done via mediators, lawyers or independently. You will still need to reach agreement over the current and future care of your children: again this can be done via mediators, lawyers or independently.
For most cases I highly recommend working with a family mediator. Family mediation can help you and your spouse reach workable solutions, with time for reflection.
Working independently (coming up with an agreement with your spouse without professional involvement) can save money, but you need to be absolutely certain that the decision you reach is one you are both happy with. If you are at all unsure, I would always recommend talking to me, a financial adviser or a solicitor to get a second opinion.
Going through the courts may be necessary if you and your soon-to-be-ex can’t reach an agreement. As well as being a more costly and drawn out process it may leave you both with a legally binding court order you are unhappy with.
I’m in a civil partnership, does this apply to me?
Yes, the new Divorce, DIssolution and Separation Act applies to both civil partnerships and marriages.
What if my divorce application is already underway?
If you have already filed for divorce, your divorce will proceed under the current system. Technically, if both parties agree, you could write to court for your divorce petition to be withdrawn, if you are not yet at the Decree Nisi stage. However you’re unlikely to gain much advantage from starting again.
The main point of the no fault system is to remove the need for recriminations and combative approaches. If you’re already down the ‘fault’ path, you will either have found a way to navigate it satisfactorily, or the need to apportion blame will already have done some damage. It’s unlikely that withdrawing your petition and applying again under the new system will bring much benefit. And, of course, there are the additional legal costs involved with stopping the divorce only to re-apply.
Should I wait to file for divorce?
Given we are so close to the new system taking effect, it makes sense to wait before filing a divorce application (with possible exceptions for those in high net worth cases who might benefit from filing before the end of the tax year). If you are in an amicable situation, being able to file jointly, or at least without blame, sets the process off on a healthy note.
If you are in a high conflict situation, it’s likely that filing under the ‘no fault’ system is likely to be to your advantage: it removes a potential cause of conflict. And also removes the opportunity for your spouse to contest the application.
That doesn’t mean you need to wait to take any action at all. If you are worried about your safety, or that of your children, the most urgent and important step is to get to a place of safety. Refuge has a range of services and resources to help you action plan.
Whatever your situation you will help the divorce process along enormously if you get organised. There’s plenty you can do before making the application, for example:
Get divorce ready
- Get to grips with your financial situation
- Consider how to talk to the children
- Consider living arrangements.
Of course, all of this will depend on the state of your relationship with your spouse. If you fear that they will not be open to discussions at this stage, start some of these preparations independently. It might be that you’ve not been involved in your marital finances very closely, for example. Now is the time to do your research and start to get informed.
The other, vital, action to take is to consider what you want from your post-divorce life. What’s important to you? What’s the picture you have of your future? This isn’t just idle speculation, it will help you further down the line as you enter financial and parenting discussions.
Want to know what to do next?
If you’re feeling overwhelmed by the road ahead, then you need two main things: information you can trust and a group of people who understand. That’s where The Absolute Academy comes in.
The Absolute Academy is both a resource and a community. You’ll find all the toolkits and up to date information you need to navigate divorce with confidence. And you’ll also find the collective wisdom of other women who get it – they’re going through this process too. And, of course, all with my knowledge, support and coaching expertise on hand to help keep you moving!
Emma Heptonstall, the Divorce Alchemist is the author of the Amazon best-selling book How to be a Lady Who Leaves, the Ultimate Guide to Getting Divorce Ready. A former lawyer, Emma is a family mediator and founder of Get Divorce Ready the online self-study and group programmes. Emma has been featured on BBC Radio, The Telegraph, the iPaper and in Marie Claire Magazine. Emma is also the host of The Six Minute Divorce Podcast. To find out more visit www.emmaheptonstall.com