Many family lawyers heralded 6 April 2022 as a landmark 'groundbreaking' day when we would finally see a revolution in our divorce laws which had been campaigned for for many years - the introduction of no fault divorce. Whereas previously 'petitioners' would need to prove that their marriage had irretrievably broken down relying on evidence and relating to a fact (the other party's adultery, unreasonable behaviour etc), now a simple tick box exercise to state the marriage has irretrievably broken down will suffice.

The ethos of the new law is a less confrontational approach - aimed at removing the sting in the commencement of any proceedings. Parties can now apply jointly although recent statistics released by HMCTS show that in the first few months of the new law being introduced there were respectively very few joint applications - out of 13,078 applications made in April only 2,810 or 21% were joint. The figures for May (21%), June (20%) and July (20%) followed suit.

There are many elements of the new law and approach which are positive for practice and welcomed: 

• We have seen a modernisation of the process with applications being made online (via the HMCTS portal) and service of the proceedings by email - this is now the default method of service for the court (accompanied by postal service in parallel);
• The new procedure can save unnecessary costs and anguish at the start of proceedings in attempting to agree particulars of a petition and negotiate about costs;
• The Latin terminology has gone - decrees nisi and absolute are now conditional and final orders;
• The grounds for disputing or 'defending' a divorce application are now very limited (relating to jurisdiction or the validity/subsistence of the marriage).

There are some other key changes, but what impact have they had on proceedings in practice?

• There is now a mandatory 20 week wait from the issue of the divorce application to apply for the conditional order. Under the 'old' law once a respondent's acknowledgement of service had been received, the petitioner could apply for decree nisi - this is important because it is the pronouncement of decree nisi (now conditional order) which allows the court to make a financial order whether by agreement or otherwise. By having the mandatory 20 week wait, this can potentially delay matters, particularly for those who have more straightforward financial affairs or who have reached an agreement prior to issuing proceedings (for example, in mediation).
• Applications can start off jointly but one party can choose to apply for the conditional order on a sole basis - this can be positive, if for example, the other joint applicant is not being cooperative the other applicant should be able to keep the proceedings progressing, however, is this another potential for conflict/dispute in proceedings? 
• If parties are applying jointly, there is no way to share the fee (£593) on the portal - and applicant 1 has to pay the fee at the outset. Hopefully, if a joint application (by its very nature of being joint and presumably amicable), sharing the fee could be agreed, however, this does mean that it will need to be discussed and is a potential for dispute/conflict at the outset. Having said this, the applicant in a sole divorce would have to pay the fee upfront.
• Notwithstanding the 'no fault' ethos, the new rules allow parties to make costs claims in respect of the divorce proceedings, although there is no provision to claim costs on the application itself and a separate application would need to be made. The President of the Family Division issued guidance saying that in the 'great majority' of cases, where parties have been reasonable- a costs order would be inappropriate. An example of when a costs order may be made is if a party has behaved unreasonably - for example, evaded service or raised spurious/irrelevant arguments.

Once the conditional order has been made, there is still a six week wait before being able to apply for the final order. This means that there is now a minimum period of 26 weeks (or 6 months) in order to obtain a divorce. Under the previous law, given the pressures on the court, it would often take up to 6 months in any event, but it could take much shorter and there were not the prescribed mandatory moratoriums.

The introduction of no fault divorce is a much welcomed change - no longer having to blame a party to a marriage for its breakdown will hopefully lead to more progressive and constructive discussions in respect of the parties' finances and in respect of any children they may have. The fact that there are (currently) relatively few joint applications does not detract from the value of being able to apply for divorce on a no fault basis.