Disputing a divorce

It is important to note that the Divorce, Dissolution and Separation Act 2020 (DDSA) will come into force from 6 April 2022.

This means that applications submitted under the existing law that are not issued by the court before 6 April will be returned to the applicant. They will need to complete an application under the new law and its processes. However, proceedings issued by the court on or before the 5 April 2022 will continue to progress under existing law, whether they have been submitted on the digital system or on the paper forms.

The new legislation will remove the ability to defend the decision to divorce or end a civil partnership. There will also be a new minimum overall timeframe of six months (26 weeks) made up of a ‘minimum period’ of 20 weeks in divorce and dissolution proceedings between the start of proceedings (when the court issues the application) and when the applicant(s) may apply for a conditional order (decree nisi) and the current minimum timeframe of six weeks between the conditional order and when the order can be made final (decree absolute).

The current divorce process

The first step in the divorce process is for the petitioner to file their divorce petition on the online divorce portal. The respondent will have seven days to respond to the divorce petition once it has been filed. If they choose to defend the divorce, they will then have a further 21 days to respond to the petition explaining their reasons for doing so in an “answer”.

There may be various reasons why a respondent may wish to defend a divorce, for example they may not like the particulars of the unreasonable behaviour relied upon by the petitioner or may not agree to have been separated for two years with their consent. If the respondent decides to defend the divorce, both spouses will likely have to go to court for a hearing in front of a judge who will decide whether to grant the divorce or not after hearing both spouses arguments and any evidence presented to the court.

There will also be circumstances where a divorce is defended due to choice of jurisdiction, i.e. which country the divorce should proceed in; or where there are arguments about the validity of the marriage itself.

If the judge approves the divorce or the respondent is convinced to withdraw their objection then the decree nisi will be granted. This is a court order stating that the court sees no reason your divorce should not go ahead.

Once the decree nisi has been issued, the petitioner will need to wait six weeks and one day before they are able to apply for a decree absolute. This is a court order that legally ends the marriage.

If the respondent chooses to defend the divorce, the use non-confrontational dispute resolution methods such as mediation could help change their position. This will help to resolve matters more quickly, cheaply and amicably.

The new divorce process

From the 6 April 2022, the new legislation will remove the fault-based requirement of ‘conduct’ or ‘separation’ facts to be relied upon. This will be replaced with the requirement to provide a statement of irretrievable breakdown of the marriage or civil partnership.

The ‘defended’ divorce will now be known as the ‘disputed’ divorce. The petitioner will now be known as the ‘applicant’ and if there are sole applications, the respondent will remain the same. There is also an option for a joint application, whereby the parties will be known as ‘applicant 1’ and ‘applicant 2’.

However, it is important to note that defended proceedings issued by the court on or before the 5 April 2022 will continue to progress under existing law, whether they have been submitted on the digital system or on the paper forms.

On what basis can a divorce now be disputed?

The Respondent can now only dispute the divorce application but not whether the marriage or civil partnership has irretrievably broken down. The only basis for a dispute that can be relied on are the following:

• To dispute the jurisdiction to conduct the proceedings; or
• To dispute the validity of the marriage or civil partnership; or
• The marriage or civil partnership has already been legally ended.

How can you dispute a divorce under the new law?

A paper form needs to be completed by the respondent and filed with the court; this is known as ‘the answer’ in response to the divorce application. There is a court fee of £245 for filing an answer unless the respondent is eligible for Help with Fees. Respondents must file and serve their answer within 21 days, from the date the acknowledgement of service is required to be filed, with their reason for disputing. If respondents do not submit the form by the deadline, the other party will usually be able to continue with the divorce.

How long will the process take?

The decree nisi will now be known as a ‘conditional order’ and the decree absolute will become a ‘final order’.

There is a new minimum overall timeframe of six months (26 weeks), made up of a ‘minimum period’ of 20 weeks between the start of proceedings (when the court issues the divorce application) and when the applicant(s) may apply for a conditional order. It also incorporates the previous minimum timeframe of six weeks between the conditional order and when the order can be made final.

Disputing a divorce will cause significant delay and a respondent should proceed very carefully before making this decision. There may also be cost consequences as well.

Is it worth defending a divorce under the new law?

Under the new law, respondents can no longer defend a divorce on the basis of irretrievable breakdown as the is no longer a requirement for the applicant to rely on a fault-based fact. However, the respondent is only able to dispute the divorce application in limited circumstances relating to jurisdiction, validity or if the marriage or civil partnership has already legal ended. Therefore, if none of the above criteria applies then a respondent will not be entitled to dispute the divorce.