On 6th April 2022, “no fault divorce” will come into force. This guide explains the new divorce process and highlights the key changes.
The Divorce, Dissolution and Separation Act 2020 comes into force on 6th April 2022. It brings major changes to the divorce process in England and Wales.
Key changes –
Change of terms used:
Petition is now Application
Petitioner is now Applicant
Decree Nisi is now Conditional Order
Decree Absolute is now Final Order
A defended divorce/dissolution is now a disputed divorce/dissolution
Decree of Nullity is now a Nullity of Marriage Order
(Respondent remains as respondent)
- allowing joint applications for divorce, civil partnership dissolution and judicial separation (people can still apply on a sole basis)
- removing the need to state one of the 5 “facts” – adultery, behaviour, desertion, 2- and 5-year separation; and replacing that with a straightforward requirement to provide a statement of irretrievable breakdown
- removing a respondent’s ability to defend the decision to divorce or dissolution.
- Respondents in a sole application will now have 14 days to respond
- Divorce/dissolution applications can now only be disputed on grounds of jurisdiction, on the validity of the marriage/partnership, and fraud and procedural compliance
- introducing a new minimum period of 20 weeks between when the divorce application is issued and being able to apply for the conditional order. The current timeframe of 6 weeks and one day between the conditional order and final order remains
How to apply
If you wish to make an application apply for a divorce/dissolution, you can apply either by applying online using the Gov.UK digital service, or on a paper version of D8 (divorce/dissolution application form). You can either apply as a litigant in person or by appointing a solicitor.
You can apply either solely, or jointly with your spouse/civil partner.
Both the online digital application and the paper application will follow the same process.
Help with Fees will still be available for sole applicants who are on a low income or certain benefits. For more information, read the guide on Gov.UK - https://www.gov.uk/get-help-with-court-fees
Completing the D8 as a sole applicant:
Section 1 – Here you are asked to tick either the box for a divorce or a dissolution (on the ground that the marriage/civil partnership has broken down irretrievably).
You are asked if you wish to make an application as a sole applicant, or as joint applicants. If you are applying jointly, one of you will be “applicant 1” And the other as “applicant 2”. It is important to make sure the required information in the form corresponds consistently with applicant 1 and applicant 2. Applicant 2 must also complete the statement of truth on pg. 18, and complete section 3 (details of applicant 2)
Section 2 - here you are asked to provide details about yourself, either as a sole applicant, or as applicant 1 in a joint application. You will also be asked if you wish to keep your contact details confidential, so that your spouse/applicant 2 can’t see them.
Section 3 – here you are asked to provide details about the respondent (applying on a sole basis), if it is a joint application, applicant 2 must complete this section with their details. There is not an option to keep applicant 2’s contact details confidential from applicant 1.
Section 3, q 3.5 asks how the applicant in a sole application would like the application served on the respondent.
Serving the Application: The default service will be from the court by an email to the respondent, with a notice sent by post. This question asks if you as a sole applicant would like the court to serve the respondent by post only or if you would like to arrange service yourself.
If you do not have the respondent’s email address, or do not wish to serve via email, then you can request a postal only service.
If you do not have a current address for the respondent but do have an email address, then you can apply to court using a D11 form and apply for alternative service solely by email.
If postal service has been unsuccessful, you can ask the court to resend the application to a different address. You can only request this once as the court will not make a third attempt at postal service.
It is strongly discouraged to use a business or work email for the purposes of serving the applicant. You should only provide a personal email address, unless you do not have any other contact details for the respondent.
If the respondent lives overseas, you will need to arrange service yourself.
You can serve the application on the respondent yourself. You must serve the papers beforemidnight 28 days after the date of the issue of the application at the latest. Service can be either by post or email or personal service with a process server. You cannot serve by personally handing the application to the respondent.
If you need to apply for an extension to the 28-day period, there must be a good reason for requesting an extension. The court must consider all the circumstances, including whether the court has failed to service the application, what reasonable steps the applicant has taken to comply with service, and they have acted promptly.
Reasons to delay serving may include:
- Concerns that an abusive respondent would use the 20-week period to create difficulties for the applicant.
- Concerns that where there are international connections, a respondent may commence proceedings abroad and at the same time delay or halt the English proceedings.
- A hope that delayed service will cause a delay in bringing forward financial claims by the respondent, perhaps well after the conditional order or even final divorce order. (Rights of occupation in the marital home and certain pension benefits are lost on the final divorce order.) But this situation has a real likelihood that the final divorce order will be granted before the final financial order, and therefore the usual problems we see today with Absolutes being granted prior to a financial settlement would remain under the new procedure.
The simple desire by one party to cause maximum distress, expense and upset to the other party then finding out as late as possible that divorce proceedings had been underway for several months
Section 4 asks for details of the marriage/civil partnership. You will need to supply a marriage or civil partnership certificate.
Section 5 asks about jurisdiction. You are asked if either you, your spouse/civil partner, or both have either habitually resident or domiciled in England & Wales.
Habitually resident in England & Wales – i.e., currently live in England or Wales (and be of any nationality),
Domiciled in England & Wales – i.e., you now live overseas but have a strong link to England or Wales (e.g., born in UK, have UK passport)
It does not matter which country you got married in - you can still divorce here.
Section 6 asks about the statement of irretrievable breakdown. You must state that your marriage/civil partnership has broken down irretrievably for the court to make an order.
If you are making a sole application or are applicant 1, tick the first box. If you are applicant 2 in a joint application, tick the second box.
Section 7 asks about previous or current court cases that relate to your marriage or civil partnership. These include child proceedings, Occupational/Non-Molestation Order proceedings, and previous applications for divorce/dissolution.
Section 8 asks which orders you wish to seek to divide your money and property. Even if you are in agreement with your spouse/civil partner, and/or making a joint application, you will still need to tick the relevant financial order boxes for yourself and any children you have. This will allow you to apply to court for a consent order to make your agreement legally binding; or to apply to court for financial remedy if you and your spouse/civil partner are not able to agree on how your money and property should be shared.
Section 9 provides a summary of what you are applying for.
Section 10 is the statement of truth. As a sole applicant or applicant 1, you must complete and sign this. IF you are applicant 2, you too must complete and sign this section.
The last page is about paying the court fee. The current court fee for a divorce/civil partnership dissolution is £593, unless you have applied for, or intend to apply for Help with Fees. If you have, you will be asked to put in your reference number, or you can attach a completed EX160 (Help with Fees application form). You can pay over the phone by calling the payment line on 0300 303 0642 (Monday to Friday 8am to 6pm, and Saturday 8am to 2pm), you will need to wait 10 days after submitting your application to call the payment line. You can send a cheque made payable to HMCTS, or request that you are emailed payment details.
Responding to a Divorce Application
If your spouse or civil partner has made a sole application, you will be required to complete a response to the application. This is done on a D10 form.
You must respond within 14 days of receiving the application.
The form is straight-forward to complete. You will need to complete the form, which asks:
- If you have read the application,
- If you intend to dispute the divorce/dissolution. If you do, you will need to complete Form D8B and submit that within 21 days of returning your completed response
- Please note that you can now only dispute the divorce/dissolution application on grounds of jurisdiction, on the validity of the marriage/partnership, and fraud and procedural compliance.
- If you agree that the courts in England & Wales have jurisdiction to deal with the case,
- If you intend to ask the court to delay the divorce/dissolution until it is satisfied with your financial situation,
- Details of any previous or current proceedings relating to your marriage/partnership. These include child proceedings, Occupational/Non-Molestation Order proceedings, and previous applications for divorce/dissolution.
You are asked to sign a statement of truth; to confirm your contact details, and if you wish to keep your contact details confidential from your spouse/civil partner (you will need to complete and submit a C8 form along with your response)
You can submit your completed response either by email or by post, details of where to send your response are included on the form.
Applying for the Conditional Order
You can apply for the Conditional Order using form D84 after a period of 20 weeks has passed since the date the court issued the application. This period has been designed to “allow for a period of reflection and to allow couples to resolve such other issues such as child or financial arrangements”.
If you are a sole applicant, you will need to complete section A in the D84 form, identify the respondent’s signature on the response, or attach a certificate of service (Form FP6), an order for either dispensing with or deeming service, or any other evidence of service you may have.
If you have applied jointly, then you can apply for the Conditional Order jointly by completing section B.
If it is a joint divorce application and only one party seeks the conditional order, the application must be served on the other party.
Sections C and D must be completed by both sole and joint applicants.
The completed application for the conditional order is either submitted by email or by post. Details are included in the form.
Applying for the Final Order
Six weeks after the Conditional Order has been granted, either party or both parties together may apply for the Final Order.
If you made a sole divorce application, you would need to complete Form D36.
If the Conditional Order was applied for jointly, but only one party is applying for the Final Order, you will need to complete Form D36A. A notice of intention must be served on the other party 14 days prior to the application for the Final Order.
The completed application for the Final Order is either submitted by email or by post. Details are included in the form.
The final divorce/dissolution order is then granted, and the marriage/civil partnership is then at an end.
