How can we proceed with a no fault divorce?
Here, Helen Pidgeon, the Principal of Helen Pidgeon Solicitors, family law specialists in Chiswick, considers when and how a “no fault divorce” is likely to affect divorcing couples in England.
What are the new grounds for starting a divorce?
The new divorce law came into effect on 6 April 2022. Provided you meet the criteria to start divorce proceedings in England & Wales, one of you or, both of you together, can make an application to the court for a final order dissolving your marriage with just a short statement to the court that the marriage has had an “irretrievable breakdown”. It is no longer necessary prove why the marriage had an irretrievable breakdown and blame the other for the breakdown or, even wait 2 or 5 years after a separation has occurred to start the divorce proceedings.
The new divorce law aims to provide a quicker and more conciliatory approach to a separation. This can be more easily achieved if both parties are already in agreement to a divorce and have reached a financial settlement beforehand. If not, then the parties should proceed with caution and have legal and financial advice on their circumstances first.
What if my spouse will not agree to a divorce?
You can still proceed with your divorce application by yourself. If you are the financially weaker spouse and no financial agreement has been made yet, then you should consider doing it this way. When it can be shown that your spouse has received the divorce application, they will be given 14 days to respond. There are now very limited grounds to object to a divorce and these are; the criteria to start the divorce in this country have not been met, the marriage is not a valid marriage within the laws of the country where the ceremony took place or, even, the marriage has been legally ended already in another country.
You will need to show you have taken steps to promptly serve your divorce application on your spouse after it has been issued otherwise, and without a reasonable explanation for the delay, you may not be able to proceed with your application to divorce or, there may be costs orders made against you for your conduct and delay. If your spouse does not agree to accept service of the divorce application and you can show they have notice of them, you can make an application to the court to ask for service to be deemed.
How long will it take?
When your spouse has received your divorce application and provided no objection by your spouse is raised, you can make your application to the court for your first divorce certificate, a Conditional Order. Whether or not you make a single or joint application for a divorce, the court can only grant a Conditional Order after the expiry of 20 weeks (ie approx. 5 months) from the date your application for a divorce was issued.
Then you will have to wait a further 6 weeks from the date of the Conditional Order before you can apply for your final divorce certificate, a Final Order. In total this is 6 months from when your application was issued. There may be circumstances in which you can expedite the proceedings but this will be the exception.
What are the potential risks with the new “no fault divorce” law?
Whilst it can be very quick and easy to proceed with a single or joint application to divorce online, the parties should get legal advice beforehand otherwise they may financially prejudice themselves. Although the application to issue the divorce is made jointly, either spouse can apply on notice to the other for a Conditional and a Final order without the other spouse’s agreement and, before they have reached a financial settlement. This could put the financially weaker spouse at risk of not receiving an interest in their spouse’s pension or other assets, unless they at least make a financial application to the court. There may be ways to discourage a spouse from applying to the court for the Final Order until the financial agreement is reached but, this is a risk that can be avoided by taking legal advice first.
If there is some urgency to secure the divorce application in England first so the financially weaker spouse can receive a more favourable financial settlement here, they should only consider making an application by themselves.
Proceeding with an application to divorce before the parties have taken legal and tax advice could have unexpected financial consequences for the both of them. If they have not already separated then the date of the divorce application will be the date their marriage breaks down.
How should you be preparing for a financial claim or settlement?
Ideally the parties should discuss the financial settlement with each other before proceeding with a divorce application. This is not always possible if one spouse needs to secure jurisdiction in this country first so they can reach a better financial settlement here. Shortly after starting the divorce they may also want to issue financial proceedings for the reasons given above unless they are able to reach a financial agreement using mediation or the collaborative divorce process.
Recently, the court has changed the procedure for preparing for a court based financial settlement or order. As soon as the financial application is made the parties should be completing a financial statement (26 pages long) and gathering the financial documents to be exhibited to that statement. Within a couple of months of a financial application being made, the court could list the first hearing. Before that hearing they will need to try and agree the values of any properties, in particular, the family home and or any business interests and tax matters. If those can’t be agreed then independent experts will need to be appointed at the first hearing. They will also need to produce suitable housing particulars for them and their spouse and evidence as to their mortgage capacity.
It can be overwhelming to deal with all of this at short notice and, without legal guidance, or they may not have the capacity to do this with other commitments going on at that time. We can suggest other ways to reduce this burden and seek funding for legal costs if required.
Removing the need to officially blame one spouse for the breakdown of the marriage and giving the power to both spouses to make a joint application (at the same time) to divorce is to be applauded. However, without a financial agreement being in place first, there is now the potential risk for one spouse to issue the proceedings with very little time for the other spouse to emotionally and financially prepare themselves or, their finances, before the Final Order of divorce is made. To try and avoid such uncertainties before or during the marriage, the parties can draw up financial agreements (pre and post nuptial agreements) which are then taken into account on a divorce.
Helen Pidgeon is a solicitor, mediator and collaborative lawyer and director of Helen Pidgeon Solicitors specialising in all aspects of family law. Do contact us if you require further assistance to help you decide what is right for you and your family.
References in this article to divorce proceedings also apply to the dissolution of a civil partnership save as otherwise stated.