No-Fault Divorce

The old no-fault divorce laws

To get a divorce in England and Wales under the previous law, your marriage must have irretrievably broken down. To show this you have to confirm one of the following:

• The other person has committed adultery. Legally, adultery is the act of having sexual intercourse with a person of the opposite sex. Romantic and emotional acts, such as kissing or touching, and same sex relationships are not 'legally' considered adultery
• The other person had behaved in such a way that you couldn’t reasonably be expected to live with them any more
• You've been separated for two years and the other person agrees to the divorce
• You've been separated for five years
• The other person has deserted you for at least two years.

So unless you'd been separated for at least two years, you had to say that your spouse’s behaviour is the reason for the marriage ending.

This is no longer necessary with no fault divorce. The application contains a statement in which you confirm that the marriage has irretrievably broken down. You can now apply by yourself or make a joint application with your spouse.

There are also much more limited grounds on which a party can object to the divorce proceedings. This should make the process much more predictable and straightforward.

The new no-fault divorce laws

The new law introduces a minimum period of six months, so that it’s now not possible to get divorced in less than six months.

The language which we use for divorce has also changed:

• A divorce petition is now an ‘Application’
• A Petitioner is now an ‘Applicant’
• The Decree Nisi is now a ‘Conditional Order’
• A Decree Absolute is now a ‘Final Order’.

At Irwin Mitchell, we’re very supportive of this change. It takes away a significant confrontational element of the process.

Under the previous law, some people had to make allegations against their spouse or have been separated for at least two years even if they both agreed about ending the marriage. It changed the tone of the case and added conflict to an already emotional experience. This doesn’t help in trying to agree arrangements for children or financial matters and can make communication harder.

The reasons for divorce are usually irrelevant to what will happen financially or to any children. If there are good reasons for a particular outcome about children or finances, then the court will look at those separately.

Anyone who is entitled to a divorce in England and Wales can apply for no fault divorce. This means that the English and Welsh court needs to have jurisdiction to deal with your case.

Generally, you can get divorced here if you or your spouse live or are domiciled here. You don’t need British citizenship, and you can get divorced in England or Wales even if you were married in another country.

This depends on various factual and legal criteria which our specialist lawyers can advise you about. The law is different in Scotland where it must be shown the marriage has broken down irretrievably.

A lawyer isn't strictly required for a no-fault divorce, however, deciding to get divorced has significant implications for you and your family, even if you’ve reached an agreement with your spouse. At an emotionally difficult time, there’s a lot to think about practically, such as living arrangements, paying the bills and child arrangements.

Divorce also has important legal consequences - for example, it could change your legal status and affect things like your tax position and pension entitlements. You should take advice from a specialist lawyer to help protect your interests and financial position if you’re considering divorce or if divorce proceedings have been started.

We can help you to think through the legal and practical issues and advise on a financial settlement and arrangements for your children. We can support you to try to reach an agreement that works for your family. If you and your spouse can’t agree, we can represent you in court or arbitration to bring matters to a conclusion.

It will take a minimum of 26 weeks from start to finish, and perhaps quite a bit longer accounting for administration and processing time.

You can either make an online application or paper application, depending on your circumstances.

No, no-fault divorce is not right for everyone. The decision of whether to end your relationship is of course one for you and not your lawyer. However, although you might want to separate from your spouse, divorce can have far-reaching implications and you should take legal advice before you act.

Timing can be a very important factor. It might be advisable to wait or separate for a period before divorcing, or in some cases to separate without getting divorced. A lawyer can explain the advantages and disadvantages of each option.

If you or your spouse have any international connections, you may need to consider whether to get divorced here or in another country. You should discuss this with a lawyer as early as possible because where you get divorced could make a big difference to any financial settlement.

Read more about international divorce.

No-fault divorces don’t affect the way the court looks at the division of assets, financial provision, or child arrangements. It could now be even easier to reach agreement about these things in some cases because the environment may be less confrontational.

You’ll still need to resolve financial matters and arrangements for children. You can do this via various different routes including through the courts, negotiation, mediation, arbitration, collaborative law or a combination.

You still need to have a Conditional Order for divorce before the court can make an order finalising financial arrangements. This applies whether you’ve agreed the terms with your spouse or they’re part of a court-imposed order.

The terms of the Conditional Order will then become effective once the final divorce order is made.

It’s important to finalise your financial arrangements in a court order, even if you have reached an agreement. If you don’t, then any financial claims stay open. This means you’d be at risk of a financial claim any time in the future, even after the divorce itself has finished.

The child’s welfare will continue to be the court’s primary concern when deciding child arrangements.

When going through a no-fault divorce, you should consider:

• Take legal advice before starting divorce proceedings – even the timing of your application could have consequences you haven’t thought about, such as tax
• If you have any international connections, you should discuss these with your lawyer as soon as possible. You may or may not be able to get divorced in a different country and this may or may not be beneficial for you
• You’ll need to decide whether one or both of you will make the application
• Deal with your financial arrangements so that these can go into a court order
• Try to agree arrangements for your children between you. If you can agree then you’re unlikely to need a court order, but it’s helpful to have the agreement set out in writing.

The court fee to issue a divorce application is currently £593 in England and Wales.

If you instruct a solicitor to deal with the process for you this may be done at an hourly rate or on a fixed-fee basis.

In any event, it’s important to take legal advice before starting divorce proceedings because of the financial implications. 

Can I seek an order that my ex-spouse pay some of my costs?

Yes, you can in some circumstances. Under the new legislation, the court still has discretion to make a costs order. In practise, under no-fault divorce, the only grounds for dispute of a divorce would be limited to jurisdiction issues or the validity of the marriage. The circumstances in which a court would make a costs order in divorce are now very limited.

What is the difference between application and financial remedy costs?

Application costs and financial remedy costs refer to two different aspects of legal expenses.

• Application costs - relates to the fees that are associated with applications made during the broader financial remedy proceedings.
• Financial remedy costs - is the legal expenses involved in the process of resolving financial matters upon divorce.

 

Final order required for approval

The court may only make an order in respect of the parties' finances after the conditional order (the first order) in divorce proceedings has been made. Once the financial settlements have been arranged, you can lodge your consent order.