The New ‘No Fault Divorce’ – Who Pays the Costs?

This year saw the implementation of the Divorce, Dissolution and Separation Act 2020, which amended the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004.  This has radically reformed the process for a couple to end their marriage or civil partnership with the focus on resolving all issues arising from the breakdown in an amicable and non-confrontational manner.

Prior to the new rules, in order to seek a Divorce without waiting until the parties had been separated for at least 2 years, it was necessary for one of the parties to blame the other for the breakdown of the marriage or partnership.  In relation to married couples of different sexes, they would have to allege that the other party had either committed adultery with a member of the opposite sex or allege that the other party had subjected them to unreasonable behaviour which they found intolerable.  Same sex couples, either in a civil partnership or marriage, would have to allege unreasonable behaviour on behalf of the other party, as adultery was classed as sexual intercourse with a member of the opposite sex and therefore would not apply.

The new rules allow the parties to seek a Divorce or Dissolution without blaming the other party for the irretrievable breakdown of the relationship.

The terminology the Court uses has also changed.  The application for Divorce or Dissolution was previously called a Petition and the party bringing the application was called the Petitioner.  Only one party could commence the proceedings before, whereas now the parties can apply jointly.

The parties are now referred to as the Applicant and Respondent if the application is made by a sole Applicant or the parties are referred to Applicant 1 and 2 if they are applying for the Divorce together.

But why has Divorce Law changed?

In practice the Courts and legal professionals found that blaming one of the parties for the breakdown caused significant problems when the parties also had to consider arrangements for any children of the family or reach an agreement in respect of financial matters.  Accordingly, the no-fault basis was brought in to end the blame game and allow families to focus on achieving the best outcomes with as little hostility as possible.

It is now possible for the parties to apply to legally dissolve the relationship together.  Again, this is for the parties to try and work together, as opposed to be battling it out in expensive litigation.

Who will pay for the Divorce or Dissolution application?

Prior to the changes, in the absence of any agreement to the contrary, the party making the application for Divorce was able to seek re-imbursement of their legal fees and any Court fees from the other party.  There has been no substantive change to this.  However, given that the new rules are there to try and take the heat out of the process, the Court may take the view that it is not appropriate to make an order for costs.  We would always recommend that the issue of costs is discussed at the outset so that an agreement can be reached with the other party as to what each party will pay.  Again, this is to ensure that are no disagreements later.

The current Court fee as at the time of writing this article is £593.  This must be paid to the Court to commence the proceedings.  Help with fees is available subject to eligibility of both parties if applying together or one party if the application is made by just one party.

We can provide you with a breakdown of our fees if you require us represent you within Divorce or Dissolution proceedings.

Will the Court consider what will happen with the children or finances during the Divorce or Dissolution proceedings?

It is important to note that if you will need to reach an agreement in relation to financial or children matters these will not be considered by the Court under the Divorce or Dissolution application.  You will still need to try and seek a resolution of these matters with your ex-partner and if this does not prove possible, you will have to make separate Court applications for the Court to determine the issues.  It is anticipated by the Court that the new 20 week time limit between applying for the Divorce or Dissolution and the next stage (which is to apply for a conditional order) will allow couples time to work through these issues whilst the Divorce or Dissolution proceedings are on-going.

How long will a Divorce or Dissolution take?

There has to be a period of 6 weeks and one day after the conditional order has been obtained before parties can seek a final Order.  Once that has been granted the marriage or civil partnership will be legally dissolved and you will be entitled to re-marry or enter into a new civil partnership, should you wish to do so.  It is therefore going to take at least 26 weeks from the date of issue for the case to conclude.  You must however factor in Court processing times.   We would certainly not recommend that you book another wedding or civil partnership ceremony until you have the final Order in your hands!

Do I need to be represented by a Solicitor?

The simple answer is no. You can apply for the Divorce or Dissolution yourself by visiting the Gov.uk website here.  We do however recommend that you seek legal advice from a solicitor before you decide to the make the application and we would certainly recommend that you seek advice on any issues relating to children or finances before seeking to resolve these with your ex-partner.  A solicitor may also be required if it is looking likely that matters are not going to be agreed.

What if I need further advice or want to go ahead with a Divorce or Dissolution?

Speak with one of our team today who can provide comprehensive and detailed advice on all aspects of a family breakdown.

Lorraine Ridley – Chartered Legal Executive

24/05/2022