The Divorce Dissolution and Separation Act 2020 (DDSA) comes into effect on 6 April 2022 and brings with it significant reform to the existing divorce process.
Applications made up to and including those issued before 4pm on 31 March 2022 will be dealt with under the current law. Thereafter, there will be a short hiatus in the processing of applications (although provision has been made for those petitions that need to be issued as a matter of urgency) before the new legislation and process comes into force from 6 April 2022.
As has been widely reported the new legislation removes the concept of fault. It is hoped that this will encourage a more constructive approach to separation and focus the parties on what is important instead of having to assign blame as to why the marriage might have broken down. The DDSA will also allow separating couples to make a joint application for a divorce order for the first time.
Whilst the irretrievable breakdown of the marriage will remain the sole ground for obtaining a divorce, there will no longer be a requirement to "prove" that by relying on one of five facts. A statement from one party to the marriage, or both in the case of a joint application, stating that the marriage has irretrievably broken down will be sufficient to obtain an order bringing the marriage or civil partnership to an end.
The DDSA introduces a new minimum overall timeframe of six months (26 weeks) from the issue of the application to the final divorce order. This timeframe is made up of a 20 week period of reflection, which commences on the issuing of the application and must pass before an application for a conditional order can be made. The "period of reflection" is intended to give couples an opportunity to reflect on their decision to divorce, as well as give them an opportunity to resolve other issues such as child and/or financial arrangements.
Once the period of reflection ends, assuming the parties still want to progress with the divorce, either or both can ask the court to make a conditional order.
As with the current law, there is a minimum period of six weeks between the conditional and final orders.
The divorce process starts with the lodging of an application for a divorce order, either solely by one party to the marriage, or by both parties in the case of a joint application. A certified copy of the marriage certificate must still be provided to the court (now that applications are made digitally, a scan of the original is sufficient). Once the application has been processed by the court it is "issued" and given a case number.
Applications for a divorce will be made through the existing court portal platform under the new legislation. Solicitors can lodge an application on behalf of their clients, but the public can also use it if they want to progress their divorces independently. We still await confirmation from HMCTS as to the court fee that will be payable on the application. It is anticipated that applicants are likely to see a reduction from the current fee of £593.
Once the application has been issued, the period of reflection begins. Once the twenty week period has elapsed, an application is made to the court for a conditional order. There must be a period of six weeks between the two orders. Therefore six weeks after the conditional order is granted, an application can be made for the final order which will dissolve the marriage.
Sole application versus joint application
There are two options for applicants: a sole application by one spouse or a joint application where both spouses want to mutually progress with the divorce. The process for each track is broadly similar although where both parties make the application jointly there is no requirement for the application to be served on the other party.
If the application is made solely by one party, it must remain in that track for the duration of the proceedings: only the applicant can apply for the conditional decree after the reflection period comes to an end, only the applicant can apply for the final order on the expiration of the six week period between decrees. However, if the applicant has declined to conclude the process after three months have passed from their eligibility to apply for the final order the respondent can make an application for the final order.
If the parties make a joint application for a divorce then both parties can apply jointly for each of the two orders. Once the twenty-week reflection period has lapsed, either one, or both, parties can apply to the court for the conditional order, so if one party fails to engage with the application for the conditional order, it can still be progressed by the other applicant independently. If the application is made by one applicant only then the application will progress thereafter under the "sole applicant" track and the applicant who has not progressed will become the "respondent" to the proceedings.
Similar provision is made at the point of applying for the final order: if one applicant delays then the other party can progress independently. However, the applicant wanting to finalise the divorce must give the other party 14 days’ notice of their intention to apply so that consideration can be given to whether the party might suffer undue financial hardship, and the appropriate application to delay the final order can be made. At the point of one party giving notice to the other of their intention to proceed with the final order, they become the "sole applicant" and the other party the respondent to the proceedings.
Sole applications and service on the respondent
In a sole application, the existing requirement for the respondent to acknowledge service of the petition remains. The timeframe for doing so has been extended to 14 days from receipt of the application.
It is anticipated that the court will be responsible for sending (serving) the application to the respondent in the vast majority of cases, but it remains open to the applicant to ask to organise service upon the respondent themselves. If the respondent resides outside of England and Wales then the court will not serve the application and the applicant will have to organise service.
Applications served by the court will be sent by email but with an accompanying postal notice to the respondent confirming that the application has been sent by email. If no email address for the respondent is provided, then the application will instead be sent by post. The guidance indicates that the email address provided for the respondent should be their "usual email address" for personal matters and that business addresses should be avoided. There is provision for applicants to apply for alternative service (e.g. if no postal address is known, an application can be made for the application to be served by email only). If service fails on the first attempt, the applicant may request an alternative email/postal address be tried and the court will attempt service once more.
The 20 week reflection period commences on the issuing of the application by the court and not the date on which the respondent is served with the proceedings. Should the applicant opt to organise service of the paperwork on the respondent independently from the court and there is a delay in effecting service, the respondent may not be aware of the proceedings for the entirety of that reflection period. The legislation requires the applicant to serve the respondent within 28 days of the application being issued. Taking this at its maximum, this could mean that the reflection period for some respondents is reduced to only 16 weeks.
Disputing the divorce
The DDSA 2022 removes the ability for the respondent to a sole application to defend the decision to divorce, or end the civil partnership.
An application for a divorce under the new legislation can only be challenged on
- jurisdictional grounds, or
- where the respondent wishes to challenge the validity of the marriage; that is to say that it was never a valid marriage in the first place, or
- the basis that the marriage has already been brought to an end (for example, by appropriate divorce/dissolution legislation in an alternative jurisdiction).
In removing the fault-based grounds for the divorce, it is anticipated that the average cost of obtaining a divorce should reduce. On a joint application, the parties can agree to share the court fee between them although it will be payable by applicant 1 when the application is lodged. On a sole application, if the applicant seeks an order that the respondent shall be responsible for meeting their costs a separate application can be made to this effect.