The law on divorce has changed and no fault divorce replaced the old system on 6 April 2022.
Essentially no-fault divorce removes the requirement to provide evidence of ‘conduct’ or ‘separation’. It replaces this with a simple requirement to give a statement of irretrievable breakdown of the marriage or civil partnership.
Visit our family law section for more information about how we can help with divorce and a range of other family law issues. You can also call us to speak confidentially with one of our advisors.
All references to “marriage” also apply to civil partnership, “divorce” also applies to dissolving a civil partnership and “spouse” also applies to civil partners.
How is no-fault divorce different from the previous 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 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.
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Who can get a no-fault divorce?
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.
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How do I get a no-fault divorce?
The process is broadly:
- One party, or both parties together will give notice that the marriage has irretrievably broken down by completing an application
- 20 weeks after the application has been issued by the court, the applicant or applicants confirm that they want to proceed with the divorce by applying for a Conditional Order
- The court can then make a Conditional Order
- After another 6 weeks, the court can make a Final Order, which brings the marriage to an end.
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How long does a no-fault divorce take?
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.
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Are no-fault divorces 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
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Could a no-fault divorce affect the outcome for my finances or my children?
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 be 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.
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Do I need a lawyer for a no-fault divorce?
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.
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What should I think about when going through a no-fault divorce?
- 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.
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How much does a no fault divorce cost?
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.
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Can I seek an order that my ex-spouse pay some of my costs?
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.
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When can I lodge a (finance) consent order
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.
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Contact us
If you’re thinking about getting divorced or if proceedings have already started, contact us online or call us to find out more about how we can help.
