On 6 April 2022, the Divorce, Dissolution and Separation Act 2020 came into force, bringing with it the long awaited ‘no- fault divorce’ process. It has been reported there was a 50% increase in divorce applications in the first week of the new law coming in to force, which may indicate many couples had waited to issue their divorce application under the new process, rather than assign blame to one of the parties under the old procedure.

Under the no-fault procedure, the grounds for applying for a divorce is the irretrievable breakdown of the marriage. Separated couples no longer must use the facts of adultery, behaviour, desertion or separation for 2 or 5 years to prove the irretrievable breakdown of the marriage. Now, you only have to make a statement of irretrievable breakdown. The new process then provides separated couples with a 20-week period of reflection from the date the divorce application is issued to reflect upon the marriage and separation. If the couple still consider the marriage has broken down irretrievably after this 20-week period, they can apply for the ‘Conditional Order’. Six weeks and one day after the date of the ‘Conditional Order’, the parties can apply for the ‘Final Order’, which dissolves the marriage.

Are there any benefits to involving a solicitor in the process?

Whilst the online application makes the divorce process simpler and more accessible for people to use themselves, there are still benefits to taking legal advice, particularly relating to settling the financial aspects of the separation.

Legally you do not need to instruct a solicitor to act on your behalf in the divorce process, however there is still the option to choose to instruct a solicitor to act on your behalf if you would like to. Your solicitor will talk you through the divorce process and provide you with an estimate of costs. They will also advise you in relation to dealing with and finalising or dismissing the financial claims that arise out of your divorce.

What about dealing with finances on divorce?

When you apply for your divorce, the application asks if you wish to apply for financial orders for you and your children. It is important that these boxes are selected as this will allow you to later make an application to the Court to either consider a ‘Consent Order’ or for the Court to make a decision about the division of your assets.

The divorce application does not automatically commence financial remedy proceedings – you must apply to the Court using a separate application and pay a Court fee. It is important to deal with the financial issues arising from your divorce and to seek an order incorporating the terms of your financial settlement. It is important to dismiss each parties’ financial claims, even if there are no assets of the marriage so neither party can seek to reopen the financial claims in the future. The importance of seeking a financial order following divorce was demonstrated in the case of Wyatt v Vince, where the ex-wife was able to make a successful financial claim against her ex-husband, more than 18 years after Decree Absolute (Final Order) was granted.  A financial order would have prevented this from happening.

Separated couples can reach agreements about how the divide and deal with their finances in several different ways.

  • You can reach an agreement with your ex-spouse directly.
  • You could negotiate using a solicitor. 
  • You could reach an agreement with the assistance of a Family Mediator.

If you reach an agreement, your solicitor will advise you in relation to seeking a Consent Order from the Court, which would incorporate the terms of your agreement. Once this Consent Order is approved by the Court, the financial claims between you are finalised.

If you cannot reach an agreement with your ex-spouse, you could make an application for the Court to make a decision about how your assets will be divided between you and the Court will make a Financial Remedy Order.

Whilst no fault divorce has made the process simpler, it is still important to seek advice at an early stage if you are considering separating from your spouse. Our solicitors can talk through all your options and provide you with advice to help guide you through the process of divorce and dealing with the financial matters. Alternatively, if you are divorced but you have not yet obtained an Order from the Court to finalise financial matters, our solicitors can act on your behalf to deal with the live financial claims between you and your ex-spouse.

If you have any questions raised by my blog, or any query about divorce, you can contact me on 07912 228906 or email me at carly.hope@silkfamilylaw.co.uk

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