Under the previous law, there was only one ground for divorce; the irretrievable breakdown of the marriage. This was evidenced by one of 5 ‘facts’, either:
- Adultery (divorce only)
- The ‘unreasonable behaviour’ of the other party
- Two years’ separation with consent
- Five years’ separation.
Of the five, the most common ‘fact’ was unreasonable behaviour as, often, the other facts were inapplicable. This, like adultery and the rarely-cited desertion, forced the parties to allocate blame for the breakdown. Either this or wait two or even five years to end the marriage. This would create additional and unnecessary hostility throughout the process.
If you do not write a will, then until your divorce is finalised, your spouse will inherit a substantial portion of your estate. Write a will today with our will writing service
Owens V Owens
The campaign for no fault divorce reached a climax in July 2018 following the Supreme Court’s judgement in Owens v Owens  UKSC 41 (25 July 2018).
In this case, Mrs Owens petitioned for divorce on the basis of Mr Owens’ behaviour. Mrs Owens’ particulars of Mr Owens’ behaviour were somewhat benign in accordance with standard practice. As a result, Mr Owens was able successfully to defend the petition. The parties therefore remained married until Mrs Owens could petition on the basis of five years’ separation.
Lady Hale described the case as “very troubling” and the reaction was swift; the Ministry of Justice sought to reform the system through legislation, the limitations of the law having been exhibited clearly.
The New Legislation
So what has changed?
Now, the only ground for divorce, dissolution or judicial separation remains “irretrievable breakdown”.
The facts stated at the beginning of this article have now been replaced by a statement that a marriage or civil partnership has broken down irretrievably. This is sufficient and conclusive evidence of the breakdown. Applications can only be disputed on jurisdictional grounds or because the validity of the legal union is in doubt.
These conditions apply for divorces in England and Wales only. They vary for divorces in Scotland and Northern Ireland. If you are seeking to end a civil partnership you must also apply to court.
The conditions are now:
- You need to have been married for at least one year
- Your marriage must be legally recognised in UK and,
- It must have irretrievably broken down.
The final divorce or dissolution order will still cause the former spouse or civil partner to be considered as having predeceased a testator or intestate on the date of the order (Wills Act 1837, ss18A-18B).
Petitions issued before 6 April 2022 will continue under the old law.
If you did write a will in the past, it is still valid regardless of whether your divorce has been finalised. Until the conditional divorce order and the final divorce order has been granted, your soon-to-be-ex spouse inherits a substantial, if not all, of your estate. This is because any gifts set out in your will to them will still take effect. Write a will today with our will writing service
Outdated terminology has been removed to make the process more accessible.
- Both petition and petitioner are now referred to as the application and the applicant.
- The terms decree nisi and decree absolute are replaced with the terms conditional divorce order and final divorce order respectively.
- A defended petition will now be referred to as a disputed application, and an undefended petition will be known as an undisputed application.
There is now a 20-week minimum period between issue and conditional order. This is in addition to the 6-week period between conditional order and final order. This mirrors the existing 6-week minimum between decree nisi and decree absolute.
There are, however, circumstances in which someone may wish to expedite this process. An impending bankruptcy or terminal illness may necessitate this. In exceptional or urgent circumstances, the process can be shortened by a court order under.
There is an option of a sole or joint application, a new approach which aims to avoid potential animosity.
To begin the process online you will be charged a fee which is currently £593. This is paid upon sending the application to court. You may be eligible for help if you are on a low income or in receipt of benefits. You may even be exempt from paying some or all of the fee but you will need to make an application (form EX10) to determine eligibility.
Applications can be made jointly or separately. Whatever the case, the court will send out:
- a notice that your application has been issued
- a copy of your application stamped by Her Majesty’s Courts and Tribunals Service
- an ‘acknowledge receipt’ (joint applications only) and
- a case number.
Joint applicants must complete all the documents together. You will apply for each stage jointly so there needs to be a level of ongoing cooperation.
If you are applying on your own, your partner will be sent a copy of the application and information about how to respond to it. The timescales for responding will depend on whether the papers arrived by email or post. The court will advise you of the date by which they should respond.
If your partner fails to respond the court will tell you what you need to do next.
Applying For The Conditional Order
You will be advised how to apply for a conditional order, but you will have to wait for a specific date. The court will tell you when this is. You must complete an application form online for processing. If you apply too early the application will be rejected.
The court will look at the application, your partner’s response and the information you gave in the application. It must be satisfied that you have the grounds for a divorce. The documents must also be accurate.
You will receive a notice confirming that you are entitled to a divorce and confirming the date when the conditional order will be made. You are unlikely to have to attend court on this date.You will then be sent the conditional order once it is granted together with information about the next step.
Once the conditional order is granted you can ask the court to make a financial settlement order.
Until your divorce has been finalised, we can help you to have security and peace of mind and write a will.
Applying For The Final Order
You must wait at least six weeks from the date of the conditional order before being able to apply for the final order. You are not divorced until the final order is made. Only then does your marriage formally come to an end.
The final order is an important legal document which you will need to keep safe. If you lose or misplace it you will be able to get a further copy from the court by paying a fee and giving the divorce case number.
Divorce does not bring to an end any financial claims made against each other. These remain ongoing and could be heard at a later date. It is recommended that you deal with your assets and achieve a settlement so that you divorce with certainty about the future.
Write A Will
Until your divorce has been finalised, we can help you to have security and peace of mind and write a will. This will cover the basics, and ensure that assets will pass to your chosen beneficiaries. We can also advise you on other legal aspects of divorce and will writing.