Changes in divorce and civil partnership legislation

The Divorce Dissolution and Separation Act 2020 introduces no-fault divorce with effect from 6 April 2022 and the detailed rules governing the changes have now been published — Family Procedure (Amendment) Rules 2022.

The new law applies to marriage, civil partnership and nullity but this note concentrates primarily on dissolution of marriage and civil partnerships.

Headline changes are as follows:

• Grounds — the only ground is irretrievable breakdown of the relationship supported by a statement but no allegations of fault or further evidence are required.
• Application — the procedure and all relevant procedural steps ( i.e. applying for the conditional or final order) can be commenced by either one of the parties to the relationship or by both A court fee is payable to issue the application.
• Timescales — the Act introduces a minimum 20-week timeframe between the lodging of the application and applying for the conditional order. The six week and one day delay between the conditional order and final order remains. This increases the absolute minimum timescale to 26 weeks and one day.
• Service provisions — service by first class post and personal service are still permitted but court service by email is now the default position. Where service is effected by email by the party commencing the process (rather than the court) that party must also send to the respondent’s postal address a notice confirming service of the application by email.
• Change in terminology — much of the archaic language has been replaced as follows:

• Costs: as fault has been removed, costs applications are likely to be rare but they are still possible.

Process — summary

Detail is still awaited, as is the publication of the new court forms. However, the process is understood to be as follows:

 Further details will follow when more guidance is issued.

Warning: this process is to bring the marriage or civil partnership to an end only. Parties will need to negotiate and apply for a financial order using a different and separate process.  For more information about the process, see our advice on marriage and dissolution.

Potential problems

Joint applications

Solicitors will need to consider carefully whether to accept a request by two parties to a marriage wishing to lodge a joint application and wanting one solicitor to act for both of them.  This could cause issues with potential conflicts of interest if difficulties arise later with regard to financial arrangements or the arrangements for children. Further guidance to solicitors is anticipated.

If it is a joint divorce application then both parties must file acknowledgements of service (Rule 7.7.4.)  At the conditional order stage if only one of the parties seeks the conditional order then the application must be served on the other party (Rule 7.9.6).

What are the implications if service does not take place within 28 days?

The service rules are as follows:

• Rule 6.6A makes provision that where the applicant serves the application, that step must be taken by midnight 28 days after the date of the issue of the divorce application. In those circumstances, the respondent would then have 16 weeks before the conditional order could be applied for. 
• If the applicant does not serve within those 28 days, then provision is made for the applicant to apply for an extension of time to serve (Rule 6.6B). When considering that application the court must consider all the circumstances including whether the court failed to serve the application, whether the applicant has taken reasonable steps to comply with rule 6.6A and whether the applicant has acted promptly.
• The concern is that if the court felt that the applicant had deliberately delayed in serving the paperwork, the court is restricted in what it can do. It is feared that the legislation is drafted such that even in those circumstances, the court has no power to extend the minimum 20week period to conditional order, provided that service takes place at least 14 days before, and no notice to dispute the proceedings has been given. Will there be no consequences for the less scrupulous applicant who deliberately delays service of the application which means that a respondent could potentially have as little notice time as eight weeks before the final order is made?

Who can apply for the conditional order and when?

Rule 7.9 makes it clear that the applicant or both parties (where there is a joint application) can apply for the conditional order at the end of minimum of 20 weeks from the date of issue of the divorce application provided that the time for filing an acknowledgement of service has expired with no notice of intention to dispute the proceedings. As mentioned above, provided the court is satisfied that the respondent has been served then the applicant can apply for the next stage (conditional order) two weeks later i.e. immediately after the 14-day period for filing of the acknowledgement of service. The application for the conditional order must be served on the other party.

Timing of applying for the final order and possible impact on finances

The new rules also suggest that in certain circumstances the respondent can apply for the conditional order. We are waiting for clarification, but if correct, this may have significant financial ramifications for the applicant if the divorce/dissolution is then finalised by the final order prior to a financial order being made by the court, especially if there are issues regarding the occupation of the family home, pensions/insurance policies in play. Legal advice should be sought at the outset of the proceedings, ideally prior to the proceedings being issued to assess this risk.

Presently, under the ’old’ process, the respondent has many weeks to consider the potential prejudice of a decree absolute and the petitioner has more control over the timing of that application. Under the new procedure, either party may apply for the final order and it will be very important, whether acting for the applicant or the respondent to secure agreement that the timing of the divorce order will be agreed to avoid adverse consequences such as loss of rights of occupation of the family home, spousal benefits in pension provision or insurance provision.

Disputed cases

As fault has been removed from the process, the only basis for disputing cases will be on the grounds of an issue as to jurisdiction of the court or the status of the relationship. A respondent who wishes to dispute proceedings must file and serve an answer (no change of terminology) within 21 days beginning with the date by which the acknowledgement of service is required to be filed (14 days).

Judicial separation and nullity

The new process includes revision of the process for judicial separation and nullity claims too, but that is beyond the scope of this article.

Summary

Further guidance, including publication of the new court forms, together with clarification of the online process, is still awaited. Family law professionals are busy watching this space, and more information will be shared as soon as it is available.