No-fault divorce represents a huge change to divorce law in England and Wales. The Divorce, Dissolution and Separation Act 2020 came into force on 6 April 2022.

This aims to reduce the impact that conflict and allegations of blame can have on families, particularly children, and updates the legal language used for a divorce/dissolution.

The changes are not retrospective. If your divorce/dissolution proceedings were issued on or before 5 April 2022, it will be governed by the previous law.

FAQ’s on the previous law.

The FAQ’s below relate only to the new and current law.

 

When can a divorce or dissolution application be issued?

You cannot issue a divorce or dissolution application until you have been married or in a civil partnership for more than one year. However, this does not stop you from separating and trying to agree arrangements in relation to finances and the children in the meantime.

Do I need a solicitor to get a divorce or dissolution?

You do not need a solicitor to get a divorce or dissolution. You can issue the divorce or dissolution application yourself, online or by post. However, it is advisable to seek legal advice beforehand, particularly if the divorce or dissolution involves international issues and/or significant sums of money. A solicitor cannot act for both parties to the divorce or dissolution, save when it is a joint application (see below). Therefore, you should each obtain your own independent legal advice.

Do I have to get a divorce or dissolution in the country I was married or entered into my civil partnership?

No. It does not matter where you were married or entered into your civil partnership. However, it does matter where you and/or your spouse or civil partner are living at the time the application is issued. To decide which country is most appropriate, you will need to consider in which country you are domiciled and/or habitually resident. This will determine whether the court is able to deal with it i.e., whether the court has jurisdiction. Domicile and habitual residence can be complex issues which may need to be explored if you or your spouse or civil partner have connections abroad. This is something you should seek expert legal advice on before issuing a divorce or dissolution application as it may have significant implications, in relation to the divorce or dissolution, financial, and possibly the child arrangements.

Will my marriage/civil partnership certificate be required?

Yes.

If issuing by post, your divorce or dissolution application needs to be accompanied by either your original or an official certified copy of your marriage or civil partnership certificate. A photocopy is not sufficient. If you were married or entered into a civil partnership in England or Wales, you can easily obtain an official certified copy of your marriage or civil partnership certificate from the office of the Registrar of Births, Deaths and Marriages or Civil Partnerships for the district in which you were married or entered into a civil partnership. The court does not return your marriage or civil partnership certificate after the divorce or dissolution.

If issuing online then you are required to submit a scanned copy or photograph, showing all four corners of the document, and to certify that this is an original or official certified copy.

Different formalities apply if you were married or entered into a civil partnership abroad. You will need to make enquires with the relevant authority and may require a translation of your marriage or civil partnership certificate.

What do I need to prove to issue a divorce or dissolution application?

The only ground for a divorce or dissolution is that the relationship has irretrievably broken down. With effect from 6 April 2022, you no longer have to prove one of five facts (adultery (marriage only), unreasonable behaviour, desertion, two years separation with consent or five years separation without consent). Instead, this has been replaced by a simple statement that the relationship has irretrievably broken down.

Does it make a difference who starts the divorce or dissolution application and whose ‘fault’ it is?

No. It does not make any difference who issues the proceedings. This is not something the court considers when determining matters relating to the children and/or financial arrangements. With effect from 6 April 2022, there is no longer a fault-based system. Divorce or dissolution proceedings can be issued either by a sole application or a joint application.

Will I need to attend Court?

Not usually. The divorce or dissolution application process is now completed online via the digital service or by paper via the post.  You will not be required to attend court unless the application is disputed, which is rare and only possible in limited circumstances. However, you may have to attend separate proceedings in court if you and your partner are unable to agree arrangements for your children or for financial provision.

Are the divorce/dissolution proceedings held in public?

Family court proceedings are not held in public, but are open to the media, with the exception of resolution hearings in Children Act proceedings and FDRs in financial proceedings. There are currently restrictions on the extent to which details of the hearings can be reported e.g., in the interests of minor children and for protection of privacy, and applications can be made to exclude the media if thought necessary. However, the transparency of the family court is under review and wider reporting permissions are being considered.

When are financial issues dealt with?

Negotiations in relation to the financial arrangements on separation, divorce or dissolution can take place at any time before, during or after the divorce or dissolution. It is not usually necessary for negotiations to have been completed before the divorce or dissolution has been made final, although it is sometimes advisable not to finalise the divorce or dissolution until financial arrangements have been agreed and recorded in a Consent Order. Particular financial issues, such as maintenance, may need to be resolved in advance of an overall settlement being reached, and this may require a separate hearing if necessary.

When will I be able to remarry or enter into a civil partnership?

Neither party to the marriage or civil partnership is free to remarry or enter into another civil partnership until the final order has been made in the divorce or dissolution proceedings.

How long will it take?

With effect from 6 April 2022 there is now a new minimum overall timeframe of 6 months (26 weeks). This is made up of:

• a minimum 20-week period between the start of the proceedings and when the applicant(s) can apply for the conditional order
• a minimum 6-week period between the conditional order and when this can be made final

This is intended to ensure a period of reflection and, where a divorce or dissolution is inevitable, to give greater opportunity for reaching an agreement regarding child arrangements and financial arrangements.

Where a divorce or dissolution is undisputed, it will usually take an average of 6 – 8 months overall from issuing the application to the making of the final order, depending on how quickly each order is applied for and any Court backlog in dealing with the applications.

In a sole application, if the acknowledgement of service is served later than 18 weeks from the date of issue, then the applicant cannot apply for the conditional order until at least 14 days after service.

Can I apply for the divorce or dissolution jointly with my spouse?

Yes, but you do not have to. With effect from 6 April 2022, the divorce or dissolution application can either be issued by a sole applicant or jointly.

Sole application

The person applying is known as the applicant, or sole applicant. The other party is known as the respondent.

If a sole applicant is legally represented, they must use the digital service. If a sole applicant is applying themselves as a litigant in person, they can use the digital service or the paper process.

A respondent can no longer defend a divorce or dissolution on the basis that the marriage or civil partnership has not irretrievably broken down. A respondent can only dispute the application based on jurisdiction, validity of the marriage or civil partnership, if the marriage or civil partnership has already legally ended in a different country, or for reasons of fraud or procedural compliance.

A sole application cannot later become a joint application. A decision needs to be made at the outset whether to issue on a sole or joint basis.

Joint application

The parties will be known as applicant 1 and applicant 2, enabling them to apply jointly.

Joint applications can be made digitally or on paper. Each applicant can have their own separate legal representation. However, if one solicitor is instructed jointly by both applicants then the application must be made on paper.

Joint applicants may not be appropriate in certain circumstances, for example where there has been domestic violence.

If an application can no longer progress jointly because the relationship has deteriorated further and/or one party is not cooperating, then one applicant can apply to switch the application from joint to sole, at the stage of applying for the conditional order or the final order, provided the appropriate notice is given.

How does the divorce or dissolution process work?

The divorce or dissolution process begins when the applicant issues the divorce or dissolution application, and the relevant court fee is paid.

There are two ways in which the divorce or dissolution proceedings can take place: the online process via the digital service or the paper process via the post.

It is recommended to use the digital service where possible, and this is mandatory for those instructing a solicitor (unless instructing one solicitor jointly).

If it is a sole application then the application will be sent to the respondent, i.e. served, and must be served within 28 days of issue. The application will usually be served by the court. Service will take place by email if an email address is given. When serving by email this will be accompanied by a postal notification confirming email service.  The respondent’s usual personal email should be used. Business emails should be avoided. If the applicant does not have a valid postal and email address for the respondent, or if the respondent lives abroad, then different rules apply. If the applicant is to serve the respondent, instead of the court, the applicant must confirm to the court that service has taken place within 28 days of issue. It is important to get legal advice and assistance to ensure effective service takes place.

The respondent must then complete and submit a response, known as an acknowledgement of service. This confirms that they have received the application and indicates whether they agree with or dispute the proceedings.

Once the acknowledgement of service is submitted (provided the respondent is not disputing the divorce or dissolution), and the minimum 20-week period has passed, the applicant can apply for the conditional order which acknowledges the entitlement to a divorce or dissolution.

Once the 6-week period has passed from the conditional order the applicant can apply for the final order, provided 14 days-notice is given to the respondent. As before, if the applicant has not applied for the final order within a further 3-months then the respondent can do so, on notice.

If it is a joint application, then the application does not need to be served but both parties will receive a copy of the application on issue and can apply jointly for the conditional order and final order once the wait periods have passed.

The wait periods may only be expedited in exceptional circumstances, for example terminal illness or imminent birth of a children, by way of an urgent application on paper only. The application will need to be supported by evidence and should be prepared by a solicitor where possible.

Can I get my costs paid by the other party?

In a sole application, the applicant will pay the costs of the application. It will then be open to the parties to agree how those costs should be paid, as part of the discussion on financial arrangements or separately. If an agreement cannot be reached, then a separate application will need to be made for a costs order.

In a joint application the parties can decide who will pay the costs of the application. If applying by paper, then either party can insert their details for payment. If applying online then applicant 1 will need to pay the fee and agree with applicant 2 how the costs should ultimately be paid, as part of the discussion on financial arrangements or separately.

If the applicant(s) are eligible they can apply for Help with Fees via the government website. This is not available on joint applications where only one of the applicants are eligible.

What happens if the respondent wishes to dispute the divorce or dissolution?

A respondent can no longer defend a divorce or dissolution by asserting that the marriage or civil partnership has not irretrievably broken down. A respondent can only dispute the proceedings based on jurisdiction, validity of the marriage or civil partnership, if the marriage or civil partnership has already legally ended in a different country, or for reasons of fraud or procedural compliance.  A respondent who wishes to do so must submit an answer within 21 days of the date the acknowledgement of service is required to be filed (longer time limits apply where the respondent lives outside England and Wales) and pay the relevant court fee. The application then becomes defended and moves to a paper process. Attendance at court may be required if it is necessary to apply for the court to list a hearing for directions, and thereafter a fully contested hearing. However, it is often still possible to reach a compromise, even when an answer has been lodged and disputed divorce or dissolution proceedings rarely result in a fully contested hearing. It will, however, inevitably take longer to finalise the divorce or dissolution proceedings and the costs will increase. It is very important for a respondent to seek independent legal advice before deciding to dispute the proceedings.

What happens if no acknowledgement of service is returned to the court by the respondent within the time limit?

The applicant will need to prove that the respondent has received the divorce or dissolution application and is choosing to ignore them, and that the requisite 20 week wait period has passed since issuing proceedings. A duplicate set of the papers may need to be sent to the respondent by recorded delivery or arranging for someone to deliver the papers to the respondent personally. In exceptional circumstances, where every attempt has been made to ensure that the respondent has received the divorce papers, it may be necessary for the applicant to apply to the court to make an order dispensing with the need to effect service. This will increase the costs of the divorce. If this is necessary, it is advisable to seek leal advice at an early stage to avoid further unnecessary delay.

When can the applicant apply for the final order?

The applicant(s) can only apply for the final order once a period of six weeks has passed since the conditional order was made. If it is a sole application, then 14 days’ notice must be given to the respondent. The respondent then has the opportunity to make an application to delay the grant of the final order on the grounds of hardship, as before. In the absence of any such application by the respondent, the application for the final order is usually processed within a few working days. It is important to discuss the timing and impact of the application for final order with a solicitor before it is made. The granting of the final order is what makes the divorce or dissolution final and ends the marriage or civil partnership, entitling the parties to remarry or enter into a new civil partnership. The applicant(s) can stop the proceedings at any time up until this point if they wish.

Can the respondent apply for the final order?

If the applicant does not apply for the final order, then the respondent can make the application, but will need to wait a further three months from the date on which the applicant could have first applied (i.e. six weeks, plus three months). The application is not granted automatically and usually requires attendance at court.

Do I have to get a divorce or dissolution? What are the alternatives?

If your relationship has broken down but neither of you wish to issue divorce or dissolution proceedings, then there are other ways in which you can formalise your separation, without taking the step of issuing divorce or dissolution proceedings and ending the marriage or civil partnership. One option is to issue an application seeking a judicial separation. The other is not to issue any proceedings, but to formally separate and record the terms of your separation in relation to financial matters and arrangements for the children in a document known as a separation agreement or deed of separation.

What is judicial separation?

A judicial separation order is a court order similar to the conditional order in divorce or dissolution proceedings. The significant difference is that you will remain legally married. The judicial separation order simply acknowledges that you no longer have an obligation to live together. The process is the same as with a divorce or dissolution and starts with the issue of a judicial separation application However, it only goes as far as the judicial separation order. It is not possible to apply for the final order, as this is what terminates the marriage or civil partnership. You are not required to prove that the marriage or civil partnership has broken down irretrievably and there is no requirement that you have to be married or in a civil partnership for a year before the application for a judicial separation is issued.

Following a judicial separation order the court has the same powers that it would have in relation to financial provision on divorce or dissolution, save that the court cannot make orders for pension sharing orders as this is only possible following the grant of a final order. It is also not possible to achieve a true ‘clean break’ following a judicial separation order, as again can only be achieved following the grant of a final order. You will remain legally married or in a civil partnership and therefore your spouse or civil partner’s entitlement under pensions, policies, and wills remain intact, unless specifically changed.

Judicial separations are very rare and are only used when both parties are strongly opposed to divorce, perhaps for religious reasons, or wish to issue proceedings before they have been married a year, or where it is preferable for the parties to remain married i.e. if they are elderly and do not wish to terminate their spouses right under pensions, policies, and wills. There is nothing to stop either party seeking a divorce or dissolution in the future. Similarly, there is nothing to stop the parties getting back together following a judicial separation, as you can apply for the courts to rescind the judicial separation order.

An application for a judicial separation cannot be made online and must be issued using the paper process.

What is a separation agreement/deed of separation?

If you do not wish to issue any proceedings whatsoever, then there is an option to formally separate and record the terms of the separation in a separation agreement or deed of separation. This document will record the details of the marriage or civil partnership and any children of the family and the date on which the parties will separate or have separated and will then regulate the terms of their separation by recording exactly what the parties have agreed between them for the period of their separation, i.e. whether to sell the home or transfer it to one party or the other, whether any maintenance is to be paid, who the children are to live with, which school they are to attend etc. This can then be signed as a deed by both parties, and each will retain a copy for future reference and can use this as a point of reference if there is any disagreement in the future. Any changes that either party wishes to make to the agreement in the future can only be made by agreement and should be recorded in a subsequent deed. The deed can be used long term and be the only document recording the fact of the separation. However, again this means that the parties will remain legally married or in a civil partnership and the same warnings apply as with judicial separation with regards to pension sharing orders, clean breaks, pension benefits, policies, and wills.

Alternatively, a separation agreement/deed of separation can be used by parties who wish to issue a divorce or dissolution in the future but are not yet ready to do so. The document can then be converted into a court order at the time when the divorce or dissolution is sought. Whilst such agreements are not enforceable as an order of the court and the court can alter the arrangements made if it thinks them unfair, the agreements are clear evidence of the parties’ intentions and if both parties provide full financial disclosure and receive independent legal advice, then these agreements are often upheld.