Overview of Non- Fault Divorce

The recent implementation of the ‘Divorce and Separation Act 2020’ in April 2022, which introduced the concept of ‘no fault’d ivorce saw the biggest change to divorce law in 50 years in England and Wales. 

The reform to divorce law, was recognised by many as well overdue and brought a variety of changes to include: 

The option to apply for divorce on a joint basis 

The change allows for the parties to proceedings to make a joint application for divorce or dissolution. 

Removing the requirement to establish ‘1 of 5’ facts 

The sole ground for divorce remains the ‘irretrievable breakdown’ of the relationship, however the requirement to prove one of five facts; including adultery and unreasonable behaviour contained in Section 1(2) of the Matrimonial Causes Act 1973 has been removed. This allows parties to reach an amicable divorce and lessens the negative impact on any children or wider family impacted by the separation. 

20-week ‘cooling period’ 

The change has introduced a new 20-week cooling period between the start of the proceedings; from when the court issues the application, to when the applicants can apply for a conditional order. Further to this, there is a minimum time frame of 6 weeks and one day between the conditional order to when the final order can be issued. 

Unable to defend 

The possibility of being able to defend the divorce has been removed. This is only available in cases where the validity or subsistence of the marriage and the jurisdiction of the court to entertain the proceedings is under dispute. 

Unable to claim costs 

Previously the petitioner in divorce proceedings could seek reimbursement of their costs in the divorce from the other party(respondent) if it was a fault based petition such as unreasonable behaviour or adultery. Now this is not possible and the party making the application is expected to meet their own costs. 

Terminology 

The changes to terminology have been made to enable ‘litigants in person’ (those without legal representation) to easily navigate through proceedings. Some changes are highlighted below: 

Petition = Application 

Petitioner = Applicant 

Decree Nisi = Conditional order 

Decree Absolute = Final Order