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No-fault divorce – what’s changed?

Long called-for changes to divorce laws have finally come into effect. We asked top local solicitor Paris Smith for all the need-to-knows.

No fault divorce

It’s not quite a cause for celebration but few would argue that the recent shake-up of divorce laws in England and Wales wasn’t long overdue.

The first significant change in the divorce process in over 50 years, the introduction of the ‘no-fault’ divorce in April means the process is no longer exacerbated by the legal requirement to explain to the state the reasons why or hold one party accountable at the outset.

Paris Smith Solicitors Hampshire Danielle Taylor No fault divorce

We called in Danielle Taylor, a top solicitor at Paris Smith to walk us through what has changed and answer a few common questions she’s been hearing from clients about to go through the divorce process. Danielle, it’s over to you.

What’s changed following the introduction of the new legislation?

In a nutshell, “no-fault” divorce means that couples are now legally able to apply for a divorce without a period of separation or “blaming” the respondent for behaviour or adultery. The “irretrievable breakdown of marriage” remains the only basis for divorce, but with the new “no fault” divorce legislation this no longer has to be proven.

Previously, if couples didn’t want to wait for a period of separation to pass, they had to file for divorce based upon the respondent’s adultery or behaviour. The process of having to “blame” the respondent was uncomfortable and often painful for many couples.

Following the introduction of the new law, if one person in the couple determines that the marriage is over and files for divorce, that has now become the proof of the “irretrievable breakdown” of the relationship. There are no allegations made against the other person.

There has also been a notable change in the language. Old-fashioned terms have been replaced with more modern and accessible language. For example, “Petitioners” are now “applicants”; “Decree nisi” is now “conditional order” and “decree absolute” is now “final order”.

The other major change following the legislation is that individuals are no longer able to defend divorce proceedings. A divorce application can only be disputed if there is a legal basis (which is restricted to a small number of circumstances, such as the court lacking jurisdiction or the marriage being invalid). The court must make a divorce order unless the application is validly disputed.

Who files for divorce?

It is now possible for divorce applications to be filed by one spouse or both spouses jointly. This means that both individuals can be applicants. However this does require some duplication of documentation and can lead to some complexity in the event that one person changes their mind.

What about the cost of divorce – who pays?

The costs of the divorce are not dealt with in the application for “no fault” divorce. Individuals are able to make a separate application to deal with costs (for example, where someone disputes the divorce process or purposefully tries to frustrate the service of documents). Most of the time costs will no longer be a significant point within the divorce process. Many couples agree how they will divide the relatively low cost of the divorce process and this can be dealt with amicably.

Will the changes make getting a divorce quicker and easier?

Following a change in the procedure a couple of years ago, the divorce process is now almost exclusively done online, with a small number of circumstances in which a paper application can be made. The introduction of the online system has largely been a success and speeded up the time it takes for the court to deal with divorce applications, although paper applications already have a significant backlog due to limited court resources.

The introduction of “no-fault” divorce doesn’t necessarily mean divorces will happen quicker as there is now a mandatory 20-week period between the issue of the divorce application and an application for the conditional order. There also remains the statutory period of six weeks between the conditional order being made and the final order being applied for.

Likewise, couples will often be advised to delay finalising the divorce process until any financial issues are resolved in their entirety – it’s not just the divorce process that needs to be taken into consideration.

What do I need to consider about divorce and dealing with finances?

Whilst there has been a change to the divorce process, the process for dealing with finances on the breakdown of a marriage has not changed.

The divorce application still enables you to indicate that you are seeking a financial order from the court. This doesn’t commence court proceedings or mean that matters cannot be dealt with by way of agreement but it does enable applications to resolve financial matters more easily.

In a nutshell, it’s important to remember that the divorce itself does not resolve financial matters, so it’s vital to take advice on financial matters and ensure that these are properly dealt with upon divorce. Otherwise, you could find that the other person makes a financial application after the divorce has been concluded.

Finances are usually dealt with through a process of disclosure and negotiation. Where there are complex financial assets (including some businesses, trusts, pensions and other assets), you might also need to get legal experts involved to advise on the implications of dividing those assets.

I’d always strongly advise couples to each get advice before deciding how to divide their finances. Once a couple has decided (whether via solicitors or any other route) how assets will be divided between them, it is important that this is finalised into a consent order to formalise the agreement and dismiss future claims.

For advice about divorce and financial matters, contact Danielle at danielle.taylor@parissmith.co.uk, 01962 679706, or speak to a member of the Paris Smith Family Team. For more information, visit ParisSmith.co.uk.

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