The Divorce Dissolution and Separation Act 2020 (the Act) brought an end to the “fault based” divorce on 6th April 2022.
The Act, also known as ‘no-fault divorce’, brought into existence the ability for both spouses to submit a joint divorce application together, rather than one party being required to submit the application against the other, albeit that such applications do still exist.
Unlike a divorce application issued by just one party, there is no respondent to a joint application. Instead, parties are known as Applicant 1 and Applicant 2, allowing both parties to share responsibility for the progression of the process. This is in comparison to an application issued by just one applicant which, largely, is controlled by the person issuing the proceedings.
This process promotes an amicable divorce and allows the parties to acknowledge that this is a joint decision, thereby eliminating a feeling of fault or blame.
However, joint divorce application requires both parties to agree to the divorce being actively pursued. Without that level of agreement, it will be necessary for a sole application to be progressed and, realistically, the proceedings, which were intended to be ‘quick’ and easy, prove to be time consuming and expensive.
When the proceedings are issued by Applicant 1, Applicant 2 will then be required to fill in their necessary information. Applicant 1 is then in a position to submit the actual application to the court.
Once a divorce application is issued (either solely or jointly) a 20-week ‘cooling-off’ or ‘reflection’ period is commenced. The principle of this is to allow the parties time to try and reach agreements in relation to the division of the financial matters or how any children will divide their time between the parents and, just generally, to ensure that it is the right decision for both parties.
In the 20 week period, it will still be necessary for both parties to acknowledge the proceedings before an application for the Conditional Order can be commenced.
Upon expiration of the cooling-off period, the parties are then able to apply for a Conditional Order, (formally called the ‘Decree Nisi’). This confirms that you are entitled to a divorce but are not divorced yet.
Six weeks and one day after the Conditional Order has been pronounced, either party will be able to apply for a Final Order (the ‘Decree Absolute’), which finalises the divorce.
However, it is at this stage when parties may face a disagreement as to when their divorce should be finalised, particularly if financial matters are yet to be resolved.
If communication breaks down at any stage in the proceedings then it will be necessary for the application to proceed as a sole application. However, such an application can only be commenced at either the Conditional Order or Final Order stages of the divorce.
In the event that one of the parties is not willing to finalise the divorce, the non-consenting applicant will receive a notice from the court to say that the other applicant has submitted an application for a final order, which will give this applicant a very limited amount of time to submit an application to oppose a final order being granted.
This is particularly important in cases where a financial settlement has not been reached or finalised and there are pensions that are still left to be resolved.
As such, whilst the concept of divorcing parties being able to file divorce applications jointly is widely welcomed in the profession, it remains extremely important that early legal advice is sought. Advice from a family law solicitor should be taken, preferably prior to the issue of the proceedings, as the provision of proper and detailed legal advice is invaluable, particularly in relation to the division of the parties’ financial resources.