Delays to the arrival of no-fault divorce

The Ministry of Justice has recently announced that no fault divorce will not be introduced as planned in autumn 2021 and instead it will be introduced on 6 April 2022.

The Divorce Dissolution and Separation Act was passed by Parliament and granted the Royal Assent in June 2020, so it is disappointing that the new law is going to take so long to come into force. For family law practitioners with long memories, this feels a little reminiscent of the delays involved in implementing the no-fault divorce law contained in the Family Law Act 1996 which was ultimately abandoned and never brought into force.

However, the problem with the Family Law Act 1996 was that it was very poorly drafted legislation. Its 21st century replacement in the Divorce Dissolution & Separation Act 2020 is a far better thought-out creation. The Ministry of Justice has indicated it needs more time in order to finalise the changes to the Family Procedure Rules and to ensure that the Family Court’s processes are able to properly deliver no-fault divorce.

Those of us who practice family law have had to get used to online divorce proceedings over the past year or so. The new online divorce portal is for the most part a success, and a significant improvement on the old paper process which (as a result of the questionable decision by the MoJ to set up specialist divorce units) had become incredibly slow and inefficient. However, the portal is still in beta and requires further development. For example, it is not currently possible for a respondent’s solicitors to acknowledge service of divorce proceedings using the online portal; only respondents who represent themselves can do this.

HM Courts & Tribunals Service no doubt aware of what needs to be changed and my understanding is that with the impending change in the law, it has taken the view that it would be sensible to deal with changes to the online divorce portal at the same time as the new law is introduced. For the time being therefore, we still have to persist with a somewhat creaky system which sometimes fails to have moved with the times. One of the areas where the portal is not yet completely functional is dissolution of civil partnerships.

Unlike marriages (both gay and heterosexual) which are dissolved by divorce proceedings. Civil partnerships are dissolved application for dissolution orders. Nevertheless, the law in relation to ending a marriage and ending civil partnership is very similar. The only really noticeable difference is that at the moment it is not possible to dissolve a civil partnership on the basis that there has been adultery (although a behaviour dissolution application would be possible in those circumstances).

The difference between divorces and dissolutions is often one of terminology. Divorces currently involve the court making Decrees Nisi and Decrees Absolute. In dissolution applications, the court will make a conditional dissolution order and then a final dissolution order. There is little real difference between the two things and it is worth noting that when no fault divorce is introduced, decrees nisi and absolute will be replaced by conditional divorce orders and final divorce orders. We will also stop referring to divorce petitions and instead make applications to the court for divorce orders.

Applications for civil partnership dissolution are relatively rare, as although civil partnerships have been possible for gay couples since 2005, many of those have been converted into marriages in the years since, and divorce proceedings are used where those marriages have broken down irretrievably.

Applications for dissolution of heterosexual civil partnership are now possible. Civil partnerships between different sex couples have only been possible since 31 December 2019. The law provides that an application to dissolve the civil partnership cannot be issued until the civil partnership is 12 months old (the same position applies in relation to marriages and divorces) and therefore it has onky been possible since January 2021 for heterosexual partnership dissolution proceedings to be issued at court.

It is not yet possible to use the online portal for dissolution of civil partnerships, only for divorces. In at least one dissolution case, the court staff have mistakenly issued a certificate of entitlement that refer to the civil partnership as a “marriage” and then followed it up with a “Decree Nisi” rather than a conditional dissolution order. When the portal is available for dissolutions as well as divorces, this sort of silly mistake will be avoided as the portal will issue the correct documents. Hopefully all this will be in place by 6 April 2021 when the new no-default law is due to come into force.

5 July 2021


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