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27 Mar 2022

10 things you need to know about divorce law changes

Critics believe the new law could lead to rushed financial settlements
A person taking off her wedding ring

Changes to the divorce system in England and Wales for the first time in 50 years will remove the concept of fault and could speed up the process.

The Government said the changes would spare people the need to 'play the blame game' and would strip out the 'needless antagonism this creates so families can better move on'.

Here, Which? takes a closer look at the changes and how they could impact your money.

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1. You no longer need a 'fault'

Under current law, if you're seeking divorce you need to give a reason why the marriage broke down and you can choose one of three reasons -adultery, unreasonable behaviour and desertion.

If you don't want to give a reason, you can apply for a divorce if you've been separated for more than two years (if you both agree to the divorce) or if you've been separated for five (if one spouse contests it).

The new law will no longer require married couples or civil partnerships to establish one of these five facts and instead either or both parties can apply to the court for an order which dissolves the marriage on the ground that it has broken down irretrievably.

It means you can save money on needless legal arguments over who was at fault.

2. Couples can make a joint application

Couples can mutually cite 'irretrievable breakdown' as the sole ground for wanting a divorce - and this can be done as a joint statement.

The application can be made online and if made by one spouse, there will be no requirement for the respondent to defend or to cross apply for a divorce.

3. One spouse cannot contest the divorce

The new changes will also stop one partner contesting the divorce, dissolution or separation if the other wants one. The government said the ability to contest a divorce is currently used in less than 2% of cases.

This could help victims of domestic abuse as previously their abusers were able to exercise coercive control over them by stopping it.

Though it's worth pointing out that under the new law, divorce can still be challenged on the basis of jurisdiction, the legal validity of the marriage, fraud or coercion and procedural compliance.

4. Divorce terms will change

The new law will update divorce language.

  • 'Decree Nisi' will become 'Conditional Order'. This is a document that says the court does not see any reason why you cannot divorce as it is satisfied you have met the legal and procedural requirements to get a divorce.
  • 'Decree Absolute' will become 'Final Order' - this is the legal document that ends your marriage. You need to wait at least 43 days (six weeks and one day) after the date of the Decree Nisi before you can apply for decree absolute.
  • 'Petitioner' - the person submitting the application, will become the 'applicant'.

5. You will have to wait 20 weeks before an order

The new law introduces a minimum period of 20 weeks between the initial application and the Conditional Order.

This means a divorce will take at least six months or more to complete.

The Government said this would provide couples with a 'meaningful period of reflection and the chance to reconsider'. Where divorce is inevitable, it says it will allow couples to cooperate and plan for the future.

The new law will keep the existing six week period between the Conditional Order and when the Final Order can be made.

6. Lawyers have welcomed the changes

Stephanie Boyce, president of The Law Society said: ''No fault' divorce will cut unnecessary conflict from the separation process - allowing couples to move on amicably.

'This divorce reform will bring our marriage laws into the 21st century and ensure that, in the future, separating couples and their children do not suffer unnecessary conflict.'.

Ross Phillips, a partner at Goughs Solicitors said the changes will bring finality and financial security to couples who had no option but to wait for two years to separate by consent as they will be able to divorce much quicker.

7. Application fees will remain the same

Divorce application fees were raised in September to £593, from £550. They are not due to change again when the new law comes into force.

However, The Law Society believes this fee is too high and discriminates against those less able to afford it. It says court fees should be reduced to reflect the fact that the new process will require less administration.

8. Financial settlements remain separate

Couples that divorce will still have to sort financial settlements in a separate and parallel process.

However, concerns have been raised that a more speedy divorce could lead to rushed financial settlements.

Former pensions minister Sir Steve Webb, a partner at LCP, and barrister Rhys Taylor argue that couples looking for a swift divorce may receive unfair shares of their partner's pension.

They said: 'One group currently at high risk of retirement poverty is divorced women. In large part this is because relatively little attention is often given at the time of divorce to a financial settlement which gives proper weight to pension wealth.'

Helen Morrissey from Hargreaves Lansdown added that one partner may be surprised by the divorce and not have enough time to consider their options.

She added: 'Given pension values can amount to more than the value of the family home then this is concerning and could leave one partner, often the woman approaching retirement with inadequate pension provision.'

According to research by LCP, only around one third of divorceshave any kind of financial order attached to them and not all of these will include pension orders.

In response, a spokesman from the Ministry of Justice said: 'This is not a new problem and, in fact, our changes give couples more time to resolve their issues and greater chance of doing so amicably.

'We have committed to further exploring financial provision, including pension sharing, once these changes are in force.'

9. You could have less time to get financial advice

The person applying for divorce must serve the application to their partner within 28 days from issuing.

However, if this person is not served until the 28th day, then they only have 16 weeks until a Conditional Order is made.

This could limit the time they have to get financial advice and they could end up being blindsided by the divorce.

The Law Society is campaigning for the notice period to start once the respondent receives the application, rather than from the start of proceedings (when the applicant applies for divorce).

You can also be served the papers by email, which could come as a shock. Mr Webb said although the new regulations discourage using a work email address to notify a spouse, it could still be used in some cases and work emails are not always private.

10. The old system will go offline on March 31

From 31 March you can no longer apply for a divorce using the current paper or digital system, or access a saved digital application which is yet to be issued by the court.

From 31 March to 5 April the digital service will not accept new applications.

From 6 April, the new paper and digital services will be available.

If you're thinking of applying for a divorce it's worth waiting a few weeks as this will not make much difference to the overall length of time the divorce takes.

If you have an application saved on the current digital service and still want proceed, you'll need to access your account and submit your application by 4pm on 31 March.