Bethany Brown, Lecturer, NTU https://www.ntu.ac.uk/staff-profiles/law/bethany-brown
On 6 April 2022 the Divorce, Dissolution and Separation Act 2020 came into force, amending the Matrimonial Causes Act 1973. Not only were changes made to the legal basis of divorce, the procedure, timeline, and terminology of divorce also changed.
The timeline for a divorce has been a controversial change. Prior to 6 April 2022, provided the court was satisfied they had received all of the required documents for a Decree Nisi (now known as conditional order), a Decree Nisi would be pronounced in open court. The Petitioner (now known as the Applicant) would then have to wait six weeks and one day before being able to apply for a Decree Absolute (now known as final divorce order). In the event the Petitioner did not apply during that time the Respondent would have to wait for 3 months before being able to apply for a Decree Absolute.
Since 6 April 2022, the procedure now requires that the Applicant wait 20 weeks after the divorce application was issued before they can apply for a conditional order (formerly a Decree Nisi). Thereafter the Applicant can apply for a final divorce order once six weeks and one day passes from the day the Conditional Order was made. In the event the Applicant does not apply, the Respondent can apply for a Final Divorce Order once a period of three months has elapsed from the date the Applicant could have applied. This means that a Respondent could be waiting approximately 39 weeks from the issue of a divorce application before they can apply for a Final Divorce Order.
The Ministry of Justice has justified the change by stating that the introduction of a new minimum period of 20 weeks from the start of proceedings allows a “greater opportunity for couples to agree practical arrangements for the future where reconciliation is not possible and divorce is inevitable.”
The Law Society in contrast has commented that the legislation could be clearer, fairer, and more accessible by reviewing the period of reflection. Their view is that the reflection period should be for three-months (around 12 weeks) rather than the statutory 20 weeks. The Society also believes that the period of reflection should be at the beginning of the divorce proceedings to allow separating couples time to consider their situation and get the legal advice they need.
Whilst this 20-week period is the minimum statutory duration, Section 1(8) of the Matrimonial Causes Act 1973 as amended by the Divorce, Dissolution and Separation Act 2020 allows the court to shorten the 20-weeks. The legislation allows the court to do this in ‘exceptional circumstances’, but does not list circumstances which may be is deemed to be exceptional under the provision.
Excitingly the national Law firm Michelmores announced recently that it had successfully applied to the court to shorten the 20-week window for its client, who has life-limiting health issues. A conditional order was made 10 weeks after the divorce application was issued.
This application may provide guidance for future cases. However, the question remains whether the 20 weeks is a reasonable and necessary requirement on top of the existing six weeks and one day? Why should capable adults be forced to reflect for such a long duration now when they were not required to prior to April 2022? When, if at all, will we receive further guidance about what is deemed as exceptional circumstances? Will there be appropriate scope for victims of domestic abuse to fit into this category alongside the terminally ill?
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