The new divorce process: What do you need to know?

On 6th April 2022, the new divorce law will come into effect which will have a huge impact upon how couples get divorced. Here is what you need to know: 

What if I am already going through the divorce process? 

Don’t worry; any proceedings issued by the court prior to 5th April 2022 will continue under the current law. The old forms will remain available for use online and from the courts.  

Can you make a joint application? 

Yes, you can. Under the new rules, both parties to the divorce can apply together. They will be known as Applicant 1 and Applicant 2. Applicant 1 will be the lead Applicant. Although joint applications are strongly encouraged, sole applications are still available. If a solicitor is instructed by both Applicants, the paper forms must be used and parties can agree between themselves how the divorce fee (currently £593 unless you are eligible for Help with Fees) will be paid. On digital service, Applicant 1 will be liable for the court fee. The application must be accompanied by a statement that the marriage has broken down irretrievably 

The application will then be served, usually by the court, via email and a notification will be sent to the other party’s postal address. If the Applicant does not have a postal address but does have an email address for the other party, they will need to apply for alternative service by email alone. The other party then needs to file an acknowledgement of service within 14 days from the date the matrimonial order was served.  

What if I no longer want to continue with a joint application? 

If you wish to switch from a joint application to a sole application then you can do so, but only at a conditional or final order application stage.  

Can I dispute the divorce? 

To dispute the application for divorce, you will need to file an answer with a court fee of £245 (unless you are eligible for Help with Fees) within 21 days with a reason why you are disputing. To dispute the application for divorce there needs to be a) a dispute regarding the validity or subsistence of the marriage or b) a dispute regarding the jurisdiction of the court. A disputed case also includes where the Respondent has also filed a divorce application and neither party’s application has been disposed of, and no matrimonial or civil partnership order has been made.  

When can I apply for a conditional order? 

A conditional order is the first order you must have before you are finally divorced and is the second step in the divorce process, the first being the divorce petition. It confirms that the Applicant has established that the relationship has broken down. You can apply for a conditional order at any time after the end of the period of 20 weeks from the date the application was issued provided that a) the time to file the acknowledgement of service has expired and b) the time for filing an answer to every application for a matrimonial or civil partnership order has expired. This allows parties to reflect and resolve other issues, such as their finances or child arrangements.  

What is the position on costs? 

An application for costs should be made no later than the application for a conditional order and should be made prior to the date a conditional order is made final. The Applicant applying for costs will need to set out written evidence in support, the grounds in which costs are sought and a summary on how they have been calculated. This application will need to be served on the other party within seven days after issue and a certificate of service will need to be filed at the court seven days thereafter. If the other party opposes the costs order or disputes the amount being claimed, they will need to file and serve a witness statement setting out why they oppose the application within 14 days after service.  

When can I apply for a final order? 

A final order is the third and final step of the divorce process. You must wait 43 days after obtaining a conditional order before you can apply for a final order, which ends the marriage. Whichever party obtained the conditional order can give notice to the court that they wish for the order to be made final. If the conditional order has been obtained jointly, both parties can jointly give notice. However, if the conditional order has been obtained jointly and the application is to proceed as notice by only one party, they may give notice to the court but will need to give the other party 14 days’ notice of their intention and file a certificate of service. If you do not make an application for a final order within a period of 12 months, the court may ask the party applying to provide an explanation why there has been a delay.  

What if we reconcile part way through the proceedings? 

If a couple gets back together during divorce proceedings, either party may apply after the conditional order but before the final order for the rescission on the grounds that the parties have reconciled and both consent to the rescission.  

What about our finances? 

It is usually advisable to resolve your finances prior to obtaining a final order. If one party dies after the final order has been obtained but before a financial settlement has been reached, the other will not have an automatic entitlement to pension or policy benefits.  

In light of the above, it is incredibly important that both parties obtain legal advice when going through the divorce process. Please contact us to speak to our Family team, who will be more than happy to assist you.  

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