Here, Helen Pidgeon, the Principal of Helen Pidgeon Solicitors, international family law specialists in London UK, considers how new “no fault divorce” is likely to affect international couples seeking to divorce in England.
What are the new grounds for starting a divorce in England?
New divorce law came into effect in England on 6 April 2022. Provided you meet the criteria to start divorce proceedings in England & Wales, one of the parties or, both of them together, can make an application to the court for a final order dissolving their marriage with just a brief statement to the court that the marriage has suffered an “irretrievable breakdown”. It is no longer necessary to prove why the marriage had an irretrievable breakdown and blame the other for the breakdown or, even wait 2 or 5 years after a separation has occurred to start the divorce proceedings, indeed those grounds are no longer available.
The new divorce law aims to provide a quicker and more conciliatory approach to a separation. This can be more easily achieved if both parties are already in agreement to divorce and have reached proposed terms of a financial settlement beforehand. If not, then the parties should proceed with caution and have legal and financial advice on their circumstances first as to whether England or their home state in the US is the most appropriate forum.
The criteria used to secure jurisdiction in England or Wales has not changed. If you think your client or their spouse might be able to rely on any of these, then they should seek advice from us as to what the outcome may be in England or Wales and consider if that would be preferable for them than divorcing in the US.
- Both parties to the marriage are habitually resident in England and Wales
- Both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there
- The respondent is habitually resident in England and Wales
- The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made
- The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made
- Both parties to the marriage are domiciled in England and Wales; or
- Either of the parties to the marriage is domiciled in England and Wales
A dispute about jurisdiction is one of the few remaining ways to halt a divorce whilst forum non conveniens is resolved (to ascertain the most appropriate forum based on the facts of the family’s life).
What if one of the parties will not agree to a divorce in England?
One party can still proceed with the divorce application by themselves. If they are the financially weaker spouse and without a financial agreement being in place beforehand, then they should consider doing it this way. When it can be shown that their spouse has received the divorce application, they will be given 14 days to respond. There are now very limited grounds to object to a divorce and these are; the jurisdiction criteria to start the divorce in this country has not been met, the marriage is not a valid marriage within the laws of the country where the ceremony took place or, even, the marriage has been legally ended already in another country.
Once issued, the party (the applicant) will need to show they have taken steps to serve the divorce application on their spouse (respondent) promptly otherwise, and without a reasonable explanation for a delay, they may not be able to proceed with the application to divorce or, there may be costs orders made against them for conduct and delay.
Where the respondent lives outside of the UK, methods of international service remain unchanged. The court will not serve an application outside of England and Wales and the applicant must complete the step required, depending on the method of service, within 28 days after the date the application was issued by the Court.
How long will it take?
When the other spouse has received the divorce application and provided no objection is raised, the applicant can make an application to the court for the first divorce certificate, a Conditional Order. Whether or not they make a single or joint application for a divorce, the court can only grant a Conditional Order after the expiry of 20 weeks (approximately 5 months) from the date the application for a divorce was issued.
The applicant will have to wait a further 6 weeks from the date of the Conditional Order before they can apply for the final divorce certificate, a Final Order. In total, this is approximately 6 months from when the application was first issued. There may be circumstances in which a party can expedite the proceedings but this will be the exception.
What are the potential risks with the new “no fault divorce” law?
While it can be very quick and easy to proceed with a single or joint application to divorce online, the parties should get legal advice beforehand otherwise they may financially prejudice themselves. Although the application to issue the divorce is made jointly, either spouse can apply on notice to the other for a Conditional and a Final order without the other spouse’s agreement and, before they have reached a financial settlement. This could put the financially weaker spouse at risk of not receiving an interest in their spouse’s pension or other assets unless, they at least, make a financial application to the court. There may be ways to discourage a spouse from applying to the court for the Final Order until the financial agreement is reached but, this is a risk that can be avoided by taking legal advice first.
If there is some urgency to secure the divorce application in England first so the financially weaker spouse can receive a more favorable financial settlement here, they should only consider making an application to divorce by themselves.
Proceeding with an application to divorce before the parties have taken legal and tax advice could have unexpected financial consequences for the both of them. If they have not already separated then the date of the divorce application will be the date their marriage breaks down.
How should you be preparing for a financial claim or settlement?
Ideally the parties should discuss the financial settlement with each other before proceeding with a divorce application. This is not always possible if one spouse wishes to secure jurisdiction in this country with a view to reaching a more favourable financial settlement here. Shortly after starting the divorce they may also want to issue financial proceedings for the reasons given above unless they are able to reach a financial agreement using mediation or the collaborative divorce process.
Recently, the court has changed the procedure for preparing for a court based financial settlement or order. As soon as the financial application is made the parties should be completing a financial statement (26 pages long) and gathering the financial documents to be exhibited to that statement. Within a couple of months of a financial application being made, the court could list the first hearing. Before that hearing they will need to try and agree the values of any properties, in particular, the family home and or any business interests and tax matters. If those can’t be agreed then independent experts will need to be appointed at the first hearing. They will also need to produce suitable housing particulars for them and their spouse and evidence as to their mortgage capacity.
It can be overwhelming to deal with all of this at short notice and, without legal guidance, or they may not have the capacity with other commitments going on at that time. We can suggest other ways to reduce this burden and seek funding for legal costs if required.
Removing the need to officially blame one spouse for the breakdown of the marriage and giving the power to both spouses to make a joint application (at the same time) to divorce is to be applauded. However, without a financial agreement being in place first, there is now the potential risk for one spouse to issue the proceedings with very little time for the other spouse to emotionally and financially prepare themselves or, their finances, before the Final Order to divorce is made. To try and avoid such uncertainties before or during the marriage, the parties can draw up financial agreements (pre and post-nuptial agreements) which are then taken into account during the divorce.
There are also some limited circumstances in which an application for financial relief can be made to the English court albeit there has already been a divorce and or financial settlement in another country.
Helen Pidgeon is a solicitor, mediator, collaborative lawyer, and director of Helen Pidgeon Solicitors specializing in all aspects of international family law in England UK. Do contact us if you require further assistance to help you decide what is right for you and your family.
References in this article to divorce proceedings also apply to the dissolution of a civil partnership save as otherwise stated.