A while back we published a blog to try and help those without legal knowledge understand the basic stages of the divorce process.  The recent introduction of the new No Fault Divorce legislation has affected these stages slightly, so we felt it was time to refresh this blog. Here’s an update from Rachel Macwilliam, Solicitor in our Family Law team.

The most well-known stages of divorce, decree nisi and decree absolute have been renamed as part of the new legislation. A decree nisi is now called a conditional order of divorce and a decree absolute is now referred to as the final order of divorce.  As the new legislation has removed any blame associated with the decision to divorce, the process is no longer called a petition but an application for divorce, and a petitioner is now known as an applicant.

Stage 1: An application for divorce is made to the court
Previously one person initiated the divorce but now this can be done jointly if this is preferred. However, it is still possible for one party to file an application against the other, and it is likely that this will be the most common type of application. The application, whether it is made jointly or by one party only marks the start of the divorce process.

Once the court has received the application for divorce, a case number will be allocated, and copies of the document will then be sent to the spouse(s) or the civil partner of the applicant who has filed them with the court. This process is called ‘Issuing a divorce’ and can take up to 28 days.

One key difference between an application for divorce and divorce petition is the ability to serve the other party by email. Historically, a postal residential service address has been required, which has sometimes caused difficulties when there are question marks over where a party might be living. The default will now be service by email unless postal service is specifically requested.

Stage 2: Acknowledgement & Response
When the divorce papers are received by the other party (who is still known as the ‘Respondent’), they must respond to the court on a specific form called an ‘Acknowledgment of service’, usually within 14 days.  No fault divorce cannot be contested, so there is no longer an option for a spouse to refuse to proceed. However, the other party must acknowledge that they have received the papers, so if they fail or refuse to return the acknowledgment of service, steps must be taken to make sure that they do receive them, such as instructing a process server to personally hand the papers to the Respondent.  

The acknowledgement of service is just to confirm receipt of the document, to document whether they are instructing solicitors (asking a solicitor to act on their behalf) and to confirm whether they are willing to pay the legal costs of the Applicant, if this has been requested. 

Although the divorce regime is now no fault, the Applicant can still tick a box on their application for divorce sating that they want an order that the Respondent will pay their costs of the divorce. This is known as making a claim for costs and the Respondent should indicate in their acknowledgment of service whether they agree or object to that order being made. However, we do not yet know how the Court are going to deal with costs in a no fault regime, and there are arguments that costs should only be awarded in cases where there has been poor conduct by the Respondent during the divorce proceedings themselves, to avoid costs being used to reinstate the blame game.

Stage 3: Conditional order of divorce
A conditional order of divorce is a document that says that the Court sees no reason why the couple cannot divorce and that they are satisfied that the marriage has broken down irretrievably. A conditional order of divorce is ‘pronounced’ at a hearing by a judge but, unless the two exceptions below apply, neither party has to attend this hearing – typically a list of conditional orders of divorce applications will all be pronounced at the same time and the hearing is simply a formality.  A minimum period of 20 weeks must elapse between the issuing of a divorce application and the application for a conditional order. This element of the new legislation was included to ensure adequate time for a period of reflection before completing the process.

If there has been a claim for costs in the petition, this will also be dealt with at the conditional order of divorce hearing if the paying spouse objects to the claim.

Stage 4: Order from the Court
Once the conditional order of divorce has been granted, an order from the Court is sent to the parties (or their respective solicitors). This is basically the first formal severing of ties between the parties. The conditional order of divorce is the cutting of the first tie and the final order of divorce cuts the second, ending the marriage.

Stage 5: Financial Arrangements
One of the most important (and often contentious) aspects of a divorce is dealing with what happens to the assets such as property, savings and pensions that married couples own when they get divorced. Although you can get legally divorced without finalising this aspect, most solicitors will advise you to reach a financial agreement before the final stage of the process – this is because you lose certain rights once the final order has been granted, that may negatively impact you should the other party die before you have an order in place. Once you and your spouse have reached an agreement, this is put into a document known as a ‘Consent Order’, which is then sent to the Court for approval by a judge.

Stage 6: Final order of divorce
Six weeks and one day after the conditional order of divorce has been granted, the Applicant can apply for a final order of divorce, which is the legal document that ends the marriage. With no fault divorce, a final order replaces the old style ‘decree absolute’.

If the Applicant does not apply for the final order of divorce within three months of the date of the conditional order of divorce, the other party is then able to make the application themselves, although there may be reasons (usually because no agreement has been reached about the finances) that the other party might resist the application.

Timescales
Concerns were raised prior to the Divorce, Dissolution and Separation Act 2020 being passed that the proposed new regime would create a culture of ‘quickie divorces’.  This was addressed by the introduction of the 20 week ‘cooling off’ period between the issuing of the divorce application and the application for conditional order. In addition, the period of six weeks between conditional order (previously the decree nisi) and the final order (previously the decree absolute) remains the same for no fault divorce, meaning that a divorce will now take a minimum of 26 weeks (six months).

Costs
At Penderlaw we are proud of our reputation as a straight-talking, friendly and efficient firm of solicitors. This approach naturally extends to our transparent pricing policy. Whilst costs for some matters fall into our fixed price quote pricing structure, others may require a more tailored approach, and therefore are estimated or quoted individually. Costs detailed within the quotes we provide are broken down and explained in detail.

Initial one hour meeting £250+VAT

Divorce From £2,000 +VAT

Our fees are charged hourly from £125 to £280 per hour, depending on the seniority and experience of the lawyer. This does not include the court petition fee of £593 or consent order fee of £53.

Summary of legal terms used in divorce proceedings

Spouse                                                                 Husband or wife

Instructing                                                          Asking a solicitor to act on your behalf

Application                                                         Legal document requesting a divorce

Applicant                                                             Person initiating the divorce

Respondent                                                       Person receiving the divorce papers

Acknowledgement of Service                     Form used to reply to the divorce petition

Conditional order of divorce                        First formal stage of severing of ties between the couple

Consent Order                                                  Agreement of financial arrangements following the divorce

Final order of divorce                                     Document from court finalising the divorce

Get in touch
If you have a family law matter which you would like to discuss with our friendly and experienced team, just call us on 01872 241408 or email us info@penderlaw.co.uk