On 25th June 2020 after years of debate and rallying the Divorce Dissolution and Separation Act [DDSA] received Royal Assent and reformed the law relating to divorce which had existed for almost 50 years (under the Matrimonial Causes Act 1973). The New regime came into force on 6th April 2021.
The DDSA amends the divorce law / procedure under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 (CPA 2004).
THE CHANGES
1-Terminology:
- “The Petition” is now called “The Application”.
- “The Petitioner” is now called “The Applicant”.
- “A Defended Petition” becomes “A disputed Application”.
- “An Undefended Petition” becomes “An Undisputed Application”.
- “Decree Nisi” is a Conditional Oder”.
- “Decree Absolute is a “Final Divorce Order”.
2-Who Applies:
Either party to a marriage can apply for divorce as previously but there is also the option for both parties to apply jointly and they will be known as Applicant 1 and Applicant 2.
3-The Grounds:
As under the old law the only ground for divorce remains that of irretrievable breakdown of the marriage but there is now no need to evidence this by proving one of the five facts as required previously [MCA 1973] or the four facts under the CPA 2004. A statement stating that “the marriage has broken down irretrievably” is all that is needed [DDSA S.191)].
The court must take the statement as conclusive evidence that the marriage has broken down irretrievably and make the divorce order [DDSA S.1(3)].
4-The Procedure:
a. Filing
If one Applicant is filing The Application it is made through the on-line Portal.
If the same solicitor is acting for both Applicants it must be made on paper.
b. Service
- The General Rule is service will be effected by the court.
- Service is usually effected by email. Business / work emails should be avoided.
- The Applicant can elect to serve The Application by Personal Service or Post.
- Service must be within 28 days of issue.
c. Acknowledgement
The Acknowledgement must be filed within 14 days of service.
d. Disputing the Application
The option to defend a divorce is now very difficult and limited to the below:
- Jurisdiction of England and Wales is disputed
- Validity of marriage / Civil Partnership is disputed or
- The marriage or Civil Partnership has already ended
If The Application is to be disputed an Answer must be filed on paper not digitally within 21 days the Acknowledgement should have been filed.
e. Cross Applications
These no longer apply.
A Respondent can only file their own Application after the first Application has been dismissed.
f. Conditional Divorce Order
The Conditional Divorce Order cannot be applied for until 20 weeks after the issue of the Application and the time for filing the Acknowledgement of Service has expired and neither party has indicated an intention to dispute the Application.
g. Final Divorce Order
The Final Divorce Order cannot be applied for until 6 weeks and 1 day after pronouncement of the Conditional Order.
If The Application for Final Order is made more than 12 months after The Conditional Order the reason for delay must be explained to the court before a final order is made.
In the event a JOINT APPLICANT is making a Sole Application for a Final Order they must give 14 days notice to the other party and file a certificate of service after serving the notice.
h. Delaying The Final Order
The need for exceptional reasons for delaying the final order have been removed.
The court must not make the divorce order final unless it is satisfied that:
i. The Applicant should not be required to make any financial provision for the Respondent; or
ii. The financial provision made by the Applicant for the Respondent is reasonable and fair or the best that can be made in the circumstances.
JUDICIAL SEPERATION:
This remains a two-stage process and the procedure is as above.
NULLITY:
The law governing nullity has not changed.
EFFECT OF THE NEW PROCEDURE:
- Promotes dissolution of the marriage on an amicable basis with no option to apportion blame.
- However, the parties are subject to the 20 week and 26-week delay even if they have agreed finances.
- There could be a significant delay between reaching agreement on a Pension Sharing Order and its implementation which could affect the net result of the Financial Agreement.