Can I switch to no-fault divorce?

Nicholas Clough is a leading UK divorce lawyer and Head of the Price Slater Gawne Family Law team. Here he looks at how someone already in the throes of divorcing their spouse might switch to a no-fault divorce.

Can I switch to no-fault divorce is a question which I think is likely to be put to many divorce lawyers in the coming months. To put this question into context, unlike the old divorce process, the Divorce, Dissolution and Separation Act – which is now law – states that couples no longer have to use one of the five facts to prove that their marriage has broken down irretrievably.

The only evidence now required is a written statement from at least one party, stating that the marriage has broken down irretrievably.

Other changes include:

• the new divorce law gives people the ability petition for divorce – and as no fault is alleged the other party cannot defend it and so prevent the divorce even if they did not want a divorce.
• a Decree Nisi is now a Conditional Order
• the Decree Absolute is now a Final Order
• there is now a mandatory “cooling off” period
• couples will be able to choose to file a joint application for divorce if they wish

But for those who have already instructed their solicitor to divorce, and want to change, I would say that this is not impossible, but there may well be challenges.

Starting again with new divorce proceedings

It will largely depend on the stage at which your existing proceedings have reached, potentially involving an application to rescind the decree nisi and dismiss the divorce petition.  Previously such an action would be due to reasons such as a reconciliation. It would also mean then having to start over with new proceedings, and new court fees, to issue under the new rules.

However, if the existing proceedings are now going ahead uncontested, and as the fault ground doesn’t get referred to in the decree absolute, I’m not sure what the benefit would be for anyone considering this – save for seeming to approach things amicably, which is of course an admirable and wholly understandable choice. If your spouse was defending the grounds for divorce, then it may be an option.

You need expert legal advice from an experienced family law solicitor

I would hope that if you’ve already instructed a solicitor, they will have advised you on issuing under old law or new law. And please do think about whether this is in your best interests. If this is a course of action you wish to take, then it is best to seek legal advice on the cost of the application to dismiss existing proceedings, and the cost of starting divorce proceedings again under the new law.

If you are affected by any of the issues outlined here, please do get in touch FamilyLaw@psg-law.co.uk today. We are here to help you.