What is no fault divorce?
On 6th April 2022, the Divorce, Dissolution and Separation Act 2020 (DDSA 2020) will come into force and the changes will have huge implications on the process that has been used to date. One of those factors, that we are focusing on in this article, is that of the issue of costs.
Up until the above date, applications for divorce (previously known as ‘Divorce Petition’s’) allowed the Petitioner to make a claim for costs against the Respondent. This meant that they were asking the Court to make an Order in which it would state that the Respondent is to reimburse the Petition for some or all of their costs incurred in the divorce proceedings because it is seen as the Respondent’s fault for the irretrievable breakdown of the marriage.
However, given that one of the aims of the new ‘no-fault’ divorce is to keep matters as amicable as possible by preventing blame being placed on one of the parties, it would be very contradicting for a Costs Order to be made against a Respondent.
For the first time there is also the opportunity for the parties to file a joint divorce application and so the Court expects that the costs involved be sorted out between themselves.
As with most things there are of course exceptions. For divorce, an additional application will need to be filed with the Court which is known as a ‘D11 Application Notice’. Within this application, a request can be made to the Court for a Judge to grant a Costs Order, but it is worth noting that filing this application will incur an additional Court fee. A D11 may be granted but the Court will need to take into consideration the following factors:
(a) The conduct of all the parties;
(b) Whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
(c) Any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.
Why has the law in relation to divorce changed?
The current law in relation to divorce is considered to be out of date and in need of reform given it has not been updated since 1973. This change has been long awaited by many family lawyers and aims to reduce the impact that conflict and allegations of blame can have on families and on children.
This is particularly in light of the case of Owens v Owens (2018) where Mrs Owens was forced to stay married to her husband as she failed to persuade the Court that Mr Owens’ behaviour was unreasonable enough. The marriage therefore could not be said to have irretrievably broken down.
This decision of the Court highlighted the need for Parliament to reform the law and introduce a no fault divorce.
How will no fault divorce change things?
The new law will:
- Replace the five grounds of divorce (behaviour, adultery, 5 years separation, 2 years separation with consent, desertion) to one ground of irretrievable breakdown of the marriage.
2. No longer allow a spouse to contest a divorce as the ability to contest a divorce will be removed.
3. Allow joint applications to be submitted, previously, only one spouse could submit an application.
4. Update the divorce language to plain English:
5. ‘Petitioner’ will become ‘applicant; (this is the person submitting the application);
6. ‘Decree nisi’ will become ‘conditional order’;
7. ‘Decree absolute’ will become ‘final order’.
New timescales
Under the new law the timescales for the process of divorce will change.
A new minimum overall timeframe of six months (26 weeks) has been introduced between the date the court first issues the application for divorce and when a final order can be made.
This is made up of the minimum period of 20 weeks from the start of proceedings to when the conditional order can be made and the 6 week period between the conditional order and when the final order can be made.
The new timescales will allow the parties a period of reflection and during this time they can make arrangements to divide their finances and make arrangements in relation to any children.
Extra protection for victims of domestic abuse
The new law will also have the benefit of providing extra protection to victims of domestic violence. In the past, perpetrators of domestic abuse have taken advantage of the current laws and contested a divorce application in order to exercise further control over their victim.
The new law will remove the ability to contest a divorce which means that victims of domestic abuse will no longer be trapped by their abusive spouses.
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