20-week ‘no fault’ divorce moratorium ‘excessive’

A year on from the introduction of the so-called ‘no fault’ divorce law, the legislation is proving effective, but the process can take longer.

Adam Maguire, a partner in our Birmingham divorce and family team, says that where once a decree nisi could be applied for straight away on receipt of acknowledgment of the divorce proceedings by the respondent, there is now a requirement to wait.

“The applicant or applicants cannot immediately apply to the court for what is now known as a conditional order – the first stage of the divorce. There is now a 20-week wait from the date of the issue of the divorce application before this can be applied for,” says Adam.

“This 20-week moratorium is in addition to the six weeks and one-day minimum period between the conditional and final orders of divorce as there was between decree nisi and decree absolute.

“This is a significant change, not least because the conditional order needs to be pronounced before the court can approve the terms of any financial agreement reached between the parties to make this binding or otherwise make a financial order.

“That is six months which many would consider excessive, particularly for those cases where the parties are amicable and finances simple or agreed at the outset.”

The Divorce Dissolution and Separation Act 2020 brought an end to ‘fault based’ divorce in April 2022, meaning that a divorce can be obtained with no blame being assigned to either party.

The only ground for divorce is that the marriage has irretrievably broken down, rather than any specific behaviour or wrongdoing by either party.

“The new process is much more of a tick box exercise than the previous process which often involved drafting particulars of behaviour or confession statements in respect of adultery.

“The applicant or applicants simply need to fill in their details and tick a box on a form on an online portal confirming the marriage has broken down irretrievably to establish the ground for divorce.”

Ministry of Justice statistics show there were just over 33,000 divorce applications between April and June of 2022 – an increase of more than 20 per cent on the previous year.

“The introduction of no-fault divorce was delayed longer than expected and the impact of the pandemic on divorce rates may have also had an effect on this,” added Adam.

“However, as with other countries who have taken the sensible step of removing blame from divorce where it is not needed, it is anticipated divorce rates in England and Wales will stabilise over time.”

Adam advises clients regarding all aspects of private family law including cohabitation, separation, divorce and related financial issues, disputes concerning children and nuptial agreements.