Divorce proceedings in England and Wales are governed by the Matrimonial Causes Act 1973.
The divorce proceedings are divided in 3 parts (In France we have the three issues in one single legal document):
- Divorce order
- Financial order
- Children care arrangements order
These 3 parts are separate. They are not in front of the same judge. They have different case reference.
Some people may only want a divorce order without a children care arrangements order. It is highly recommended to sort the finances at the time of the divorce because once the financial claims are open in the divorce application, they stay alive in England. There is no time limit to seek financial provision upon divorce.
Divorce Suit
There is only one ground for divorce in England. A divorce can be pronounced in case of an irretrievable breakdown of the marriage.
Between 1973 and 5 April 2022, the applicant had to prove the breakdown by establishing one of the following five facts:
- Adultery
- Unreasonable behaviour
- Living apart for at least 2 years + consent of the other spouse to divorce
- Separation for 5 years
- Desertion
The most common fact used in the petitions was “unreasonable behaviour”. One spouse had to write in detail how the behaviour of the other spouse was unreasonable and that was commonly called the divorce for fault.
Most of the petitions were undefended and the proceedings continued with the pronouncement of Decree Nisi and six weeks and one day later (compulsory period) pronouncement of Decree Absolute.
There was a reform following the landmark case of Owens v Owens [2018]UK SC 41. Mr and Mrs Owens married in 1978 and had 2 adult children. In February 2015 Mrs Owens filed a divorce petition alleging the respondent had behaved in such a way that the petitioner could not reasonable be expected to live with the respondent. Mr Owens defended the case arguing the examples given of his behaviour were not sufficient to satisfy the test. The trial Judge agreed and dismissed the petition. Mrs Owens appealed to the Court of Appeal who dismissed her appeal. She then appealed to the Supreme Court.
The Supreme Court unanimously dismissed that appeal. The judges applied the law.
And the law, at the time, was a 3-stage enquiry:
- first, determining what the respondent did or did not do by reference to the allegations of behaviour in the petition (factual);
- second, assessing the effect of the behaviour on this particular petitioner in all of the circumstances (subjective); and
- third, evaluating whether as a result of the first and second, it would be unreasonable to expect the petitioner to continue to live with the respondent (objective).
Mrs Owens had to wait February 2020 to file a new petition alleging separation of 5 years.
This case supported the call for a reform.
New law
The Divorce, Dissolution and Separation Act 2020 came into force on 6 April 2022. The law changed for the first time in 50 years. There is now no requirement to assign fault when filing for divorce. This is the “no-fault” divorce. One spouse is no longer required to “blame” the other. No evidence is necessary. There is only one single ground for divorce: irretrievable breakdown of the marriage. One cannot defend the petition.
The process is all digitalised. All solicitors have access to the online Court portal.
The divorce application fee is £593 as of January 2024. You must upload a copy of your marriage certificate.
With the new law, there are 2 options:
- sole application
- joint application
There is no great difference between a sole application and a joint application. There is no impact of the finances.
The court will issue the divorce application sometimes within a few hours. Service to the other spouse can be made by the court or by the solicitor. If the service is done by the solicitor, there is a 28-day period to execute service.
Once the application is issued there is a 20-week waiting or “cooling off” period before being allowed to seek the conditional decree (Decree Nisi in the former law). Some criticise this delay as one cannot file a financial settlement upon divorce without having obtained first the conditional divorce. With a sole application the period starts when the application is issued and it is straightforward. There can be a delay with a joint application because each spouse needs to file, and each party needs to confirm before the Court can actually issue the application.
The conditional decree does not terminate the marriage. In case of death between the date of the conditional decree and of the final decree, the spouses are still married and one will be the surviving spouse.
The final divorce can be obtained within 6 weeks and 1 day following the date of the conditional decree.
Financial order
When filing the application in divorce, one spouse can state that he or she will seek a financial order. However, the financial proceedings are separate. They start with the filing of a financial application in the Form A that solicitors file online on the Court portal. Once the court issues the application, the parties will be directed to exchange financial disclosure by way of Forms E. The parties will need to provide 12 months statements for all their bank accounts, properties market valuation, pensions valuation, schedule of expenses…
The proceedings are in 3 stages:
- first appointment ;
- Financial Dispute Resolution (FDR) ;
- Final hearing ;
first appointment
The proceedings will be listed for a first appointment. This hearing will determine if there are more documents that are necessary in order to have the case ready. It will be the opportunity to raise questions on the other spouse’s financial disclosure and to order joint expert reports.
Financial Dispute Resolution (FDR)
This hearing is generally listed for 2 hours but in order to achieve a final financial agreement, it is very common to spend the day negotiating in and outside Court. The judge at the FDR hearing will give an indication of what would be fair and reasonable to achieve in the case and in light of the without prejudice (confidential) offers the parties have exchanged in advance of the hearing. This judge will not rule on the case. His or her intervention will be only for this hearing. He or she cannot be the trial Judge.
Following the pandemic, more than 50% of the hearings are held remotely by video link.
Final hearing
Very few cases reach the stage of the final hearing. Most of the cases settle before. In respect of financial claims on divorce, the starting point for the court is always the section 25 of the Matrimonial Causes Act 1973. The court must have regard to all the circumstances of the case. The court must give first consideration to the welfare of the children of the family. The checklist factors are as follow and there is no hierarchical order of importance:
- The income, earning capacity, property and other financial resources,
- The financial needs, obligations and responsibilities,
- The standard of living enjoyed by the family
- The age of each party and the duration of the marriage
- The health conditions,
- Contributions from each party,
- The conduct (it should be a financial conduct)
- Loss of any benefit
The Court will then decide the best way to divide finances, property and other assets on divorce.