For years, family law practitioners have been campaigning for a change to the divorce law in England and Wales. The old system, which had been law since the early 70’s, stipulated that the petitioner had to blame the other spouse for the breakdown of the marriage, either through unreasonable behaviour or adultery, unless they were happy to wait 2 years and use the fact of 2 years separation with consent. Clearly, in a time when practitioners are told to do all they can to help parties separate as amicably as possible, starting off by blaming the other for leaving the toilet seat up or never emptying the dishwasher did not get matters off to the best start. Even where couples have agreed a relatively amicable separation, the fact is no one likes shouldering the blame and even with all the reassurances that it was a means to an end to get the petition through, it often left a bad taste in parties’ mouths.
Now that the Government’s long-awaited Divorce, Dissolution and Separation Act 2020, comes into force on 6th April 2022, what does this actually mean for divorcing couples? Many will have waited for today before lodging their divorce application, so we have summarised the biggest changes below:
1. You can bring a joint application. This means that both parties can decide to get divorced and bring the application together, although they will still be able to bring a solo application. Whether or not the application is joint or single doesn’t have any bearing on the overall process, but this will enable couples to feel on an equal footing, especially where they have come to the decision together that the marriage has broken down.
2. No option to contest an application. Under the old law, it was possible to defend a divorce, as in the high-profile cases of Tini and Hugh Owens (Owens v Owens  UKSC14) The new law removes the ability to contest an application, unless there is a dispute over jurisdiction.
3. Change of terminology. Gone are the old terms of decree nisi, decree absolute and petitioner. They have been replaced with conditional order, final order and applicant.
4. Time scales. There is now a mandatory ‘cooling off period’ of 20 weeks from making the application and the granting of the conditional order. This is in part to allow for couples to resolve the arrangements for their children and the finances, and also for a period of reflection before the orders are granted.
5. No provision for costs. Under the old law, the petitioner was able to claim costs from the respondent on a fault-based petition as the petitioner was blaming the breakdown of the marriage on the other party (either because of their unreasonable behaviour or adultery.) Under the new law, there is no provision for either party to claim costs from the other so the applicant will either need to take this on the chin, or the parties will need to agree how the divorce is being funded in advance of the application being made.
It is hoped that this new system will remove the element of mudslinging which was made necessary by the archaic law which didn’t keep up with modern processes.
Alice Leadbeatter. Solicitor, Family department.
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