After many years of campaigning for it, and months of waiting for the new law to come into effect, we finally have a system of no-fault divorce in England and Wales.
But what exactly does this mean?
New system, new terminology
The first thing to understand is that with the new system comes some new terminology.
Firstly, the old ‘divorce petition’ is replaced by ‘divorce application’, and accordingly the person who applies for the divorce is no longer called the ‘petitioner’, but rather the ‘applicant’. (The other party is still referred to as the ‘respondent’)
Secondly, the old term ‘decree nisi’, when the court confirmed that the petitioner was entitled to a divorce, is replaced by the term ‘conditional order’.
Lastly, the old term ‘decree absolute’ is replaced with the term ‘final order’.
Doing away with the blame game
The most important feature of the new system is that it does away with the need for the petitioner/applicant to blame the respondent for the breakdown of the marriage.
Under the old system the petitioner had to prove that the marriage had irretrievably broken down by showing one of five things: that the respondent had committed adultery; that the respondent had behaved unreasonably; that the respondent had deserted them for two years; that they had been separated for at least two years and the respondent consented to the divorce; or that they had been separated for five years.
This meant that unless the parties had been separated for at least two years the petitioner had to prove that the respondent was at fault for the breakdown of the marriage, because they had committed adultery or behaved unreasonably.
All this has changed, in that it is no longer necessary for the applicant to prove that the marriage has broken down irretrievably. All they must do is file with their divorce application a statement that the marriage has broken down irretrievably, and the court must accept this as conclusive evidence that the marriage has indeed broken down irretrievably.
Another change is that, for the first time, it will be possible for both parties to apply for the divorce together.
A joint divorce application must be accompanied by a statement by both parties that the marriage has broken down irretrievably.
No more defended divorces
The fact that the court must accept the applicant’s statement as proof that the marriage has broken down irretrievably means that it will no longer be possible for the respondent to defend the divorce, by denying that the marriage has in fact broken down.
This of course means that the applicant cannot be denied the divorce, by the respondent successfully defending it (although it should be said that defended divorces were very rare under the old system).
Period for reflection
But the fact that the respondent cannot defend the divorce and that the applicant does not have to prove that the marriage has broken down irretrievably does not mean that divorces will now go through quicker than ever.
The new system provides that there must be a twenty-week gap between the start of the divorce proceedings and the applicant applying for the conditional order.
The idea behind this ‘period for reflection’ is that it provides couples with a meaningful period to consider whether they do, in fact, want to go ahead with the divorce. And where divorce is inevitable, it enables couples to cooperate and plan for the future, in particular sorting out arrangements for children and finances.
And after the conditional order has been made there will still have to be a six-week gap before the final order, as under the old divorce system. Divorces under the new system will therefore take a minimum of twenty-six weeks.
Divorce landscape changed forever
No-fault divorce changes the divorce landscape forever. Fault has been a feature of divorce law in England and Wales ever since the civil courts were allowed to grant divorces more than 150 years ago.
The big hope is that removing the need to blame the respondent for the breakdown of the marriage, and the possibility of joint divorces, will make the whole process less acrimonious, which in turn will make it more likely that the parties will be able to reach agreement in relation to the important issues relating to their children and future financial arrangements.