The Divorce, Dissolution and Separation Bill or No Fault Divorce Law, will come into affect on April 6th 2022. It represents the biggest reform of divorce laws in half a century and aims to reduce the impact that allegations of blame can have on families, particularly on children. But what does this all mean and how will it work in practice?
Sole applications for no fault divorce
Anyone can apply individually for a divorce. This will be referred to as a ‘sole application’. The person applying will be known as the ‘applicant’ or ‘sole applicant’, and their spouse will be known as the ‘respondent’. The applicant will NOT be able to subsequently change to a joint application, so the decision on whether to apply solely or jointly with the other party must be made at the start.
A sole applicant can represent themselves (known as litigants in person) but where solicitors are acting for the applicant the digital service must be used.
The new paper application forms will ask for identical information as the digital system from 6 April 2022.
No defence in no fault divorce
Respondents are not able to dispute whether the marriage has broken down. In exceptional circumstances the respondent can raise a defence because-
- they dispute the jurisdiction of the court in England and Wales.
- they dispute the validity of the marriage because the parties have not entered into a legally valid marriage.
- the marriage has already been legally ended. For example, in proceedings outside of England and Wales.
- for reasons such as fraud and procedural compliance.
Service
The application is ‘served’ (sent) to the respondent once issued by the court. The court will send the application to the respondent by email with a postal notification that service has taken place by email. The postal notification sent to the respondent’s address will give a link to view the application. The email address for the respondent should be an active personal email. Business emails should be avoided.
- Where the applicant does not provide the respondent email, the court will serve the application by post.
- If a postal address for the respondent is not available, the applicant must apply in form D11 for alternative service by email alone.
- The applicant may also request service on the respondent to an alternative address.
- Methods of international service remain unchanged. The court will not serve outside of England and Wales.
Joint applications for no fault divorce
The new law allows for joint applications and parties will be equally responsible for the application as applicant 1 and applicant 2.
How do we apply jointly?
- The joint applications can be made digitally or on paper by litigants in person
- Applications made by a solicitor for one party must be through the digital service.
- Where there is one solicitor acting for both applicants a paper form must be used.
What is the procedure for joint applications?
- Applicants should agree in advance of making the application which of them will take the role of applicant 1.
- Applicant 2 will then be sent an email to review the information and provide any additional details.
- The application returns to applicant 1 to review and submit.
- On the digital service applicant 1 will pay the court fee. On paper applications, either applicant may discharge the fee.
- The application ends with a statement of truth to be signed by both parties.
- It is possible to ‘switch’ the application from joint to sole at conditional and final order stage where applicant 1 has not progressed the application. But the applicant must give 14 days’ notice to the other party of their intention to give notice to the court that they wish the conditional order to be made final.
Where marriage/civil partnership certificates are required, they must be the original or certified copy. A certified translation must accompany foreign documents.
Should the applicant(s) wish to withdraw the application, they will need to complete form D11 and send it to the court.
The online system
- A new digital system will incorporate the reforms.
- The online system is not available for judicial separation or nullity cases.
- Solicitors will log into the same service used now to progress applications but will need to select the different system in the drop-down menu. For cases under the new law solicitors will need to select the option of ‘New Divorce Case’.
- New users will first need to create an account. Parties to the case will be given a reference number and access code
- Users will be able to see the documents and orders uploaded in relation to their case.
- Contact details can be made private from their spouse should there be a need to do so.
Financial orders
Applications for a financial order remain unchanged. Parties are able to file an application, consent or contested, on the digital system. These can be applied for at any time during or after the divorce process.
Transitional period
Applications submitted before 31st March and issued by the court on or before 5th April will continue to progress under the existing law. This means the applicant will apply for and receive a Decree Nisi and a Decree Absolute to finalise their divorce. Therefore, if you have missed the deadline to submit by the end of this month (March 2022) there is a five day waiting period to apply for divorce in England and Wales.
There is more in-depth detail on the no fault divorce law coming into affect here on the gov.uk website.