How long do you have to be separated before divorce?

After a campaign spanning over 30 years, on 6 April 2022, the Divorce, Dissolution and Separation Act 2020 finally came into force. This new law – also known as No Fault Divorce – has reformed the requirements, language, and procedure relating to divorce and has also, importantly, removed the ability to make allegations and apportion blame which, in turn, will hopefully mean less conflict.

Pre-No Fault Law

Prior to No Fault Divorce being in place, couples had to have been married or in a civil partnership for at least 12 months before they could obtain a divorce and rely on one or more ‘facts’ to evidence that their marriage or civil partnership had irretrievably broken down. If spouses had not been separated for at least 2 years and did not both consent to the divorce taking place, then it was necessary for them to cite that adultery (which was only applicable for divorce) or unreasonable behaviour had taken place; otherwise they would be unable to obtain a divorce or a dissolution (unless they were willing to wait for 5 years after which the divorce could proceed without the Respondent spouses’ consent).

This meant that if the Respondent spouse was unwilling to give their consent to the divorce taking place, and the other factors weren’t relevant, there were individuals who were forced to stay in an unhappy marriage, or civil partnership, until either 5 years had passed or the Respondent spouse gave their consent.

Not only did this have an emotionally detrimental impact on many separating spouses, but it also considerably impacted their ability to have an amicable separation, which in turn affected their ability to communicate about child arrangements and financial matters.

Post-No Fault Law

Under the new process, couples still need to have been married, or in a civil partnership, for at least 12 months, however there is now no requirement for them to have been separated for any period of time, and consent of the Respondent spouse is not needed as a divorce can no longer be ‘defended’. The law now provides just one basis for divorce or dissolution; that the relationship “has broken down irretrievably”.

Further, separating spouses can now make an application for divorce on either a sole or joint basis. For some couples, this ability to apply jointly is important as it reaffirms that neither is more at fault than the other for the breakdown of their marriage.

The new rules don’t, however. mean that obtaining a divorce is now a quicker process as the caveat to the new law is that once the divorce or dissolution application has been issued, a 20-week and 1-day period of ‘reflection’ has been introduced before the Conditional Order can be applied for. This is also intended to give parties time to enter into financial discussions and come to an agreement on the same (which, in practice, can take a lot longer than just 5 months).

Furthermore, once the Conditional Order has been pronounced, there is a wait period of 6 weeks and 1 day before the Final Order can be applied for, to make the divorce or dissolution final. This applies to both sole and joint applications.

Next Steps

It is possible to apply for a divorce or dissolution online or by post, on a ‘do-it-yourself’ basis, however we would always suggest obtaining independent legal advice from a specialist to ensure that the process is done correctly, any tax implications are carefully considered, and that financial and children matters are also taken into account (where relevant).

No Fault Divorce has paved the way for different models of ending a marriage, including the 1 lawyer/ 1 couple model. The Family Law Partners Agreeable model is one such option, which has been carefully designed to help separating couples reach outcomes that allow them to divorce with dignity and move forwards with their lives in a positive way.

For more information about the No Fault Divorce process, please see our earlier blog: https://www.familylawpartners.co.uk/blog/no-fault-divorce-a-discussion-with-lisa-burton-durham-director-and-specialist-family-lawyer

Sophie Reynish is a family law paralegal in our Brighton team. Contact us to arrange a consultation about your personal circumstances.