Helpful updated court guidance
“The Divorce, Dissolution and Separation Act 2020 (DDSA 2020) came into force on the 6th April 2022 amending the Matrimonial Causes Act 1973; it reformed the law on divorce in various ways; it removed the requirement to prove a fact and what replaced this was a sole ground that the marriage or civil partnership had irretrievably broken down; “no-fault divorce.”
So said His Honour Judge Simmonds, our lead national divorce judge (who actually sits in our own Bournemouth Family Court), in a very recent case, regarding a requirement for clarity in the event of attempted reconciliation during an active divorce process.
Sadly, the reconciliation didn’t last, so fifteen months after the date of the conditional order having been made, after the failed reconciliation attempt, the applicant asked for a final order for divorce, an unusually long time to wait.
It was therefore left to the court to use its discretion whether to allow the application for a final order for divorce after such a long time after the conditional order for divorce was declared by the court.
Applying to the court for divorce
You can apply for divorce on your own or even together. Please note that we do not represent both parties, only one of you. After you have applied, you are provided with an ‘issue date’ by the Court.
Twenty calendar weeks from the issue date must expire before the applicant or both of you (where it is a joint application) may then ask the Court to declare a conditional order for divorce.
Be sure that you have received a signed acknowledgement from your spouse first, otherwise more work needs to be done, for example, applying to the court to personally serve your spouse with the application and provide evidence they have received it.
At the conditional order stage, the court then declare, some weeks after you have applied, that it is satisfied that the marriage has irretrievably broken down. However, that is not the end of the matter.
When six weeks after the conditional order have expired, you may then apply for the final order for divorce, officially bringing your marriage to an end, although make sure the matrimonial financial remedy is in order before you apply.
After you ask the court for a final order for divorce, the Court will make the conditional order final if it is satisfied that there are no other applications pending to stop the divorce from going ahead.
Reasons For Delay of applying for a final order for divorce
There are many reasons for delay where the Court will exercise its discretion and grant the final order.
- The delay has been to allow you both to resolve your finances.
- Ill health.
- As a result of some other family matter (a child or other family member has been unwell) and you have concentrated on that.
In these circumstances, the parties usually have not reconciled, and the final orders granted. A marriage remains until the making of a final order for divorce.
If the Court does not grant the application for a final order, then it follows that it would have to rescind the conditional order, a step that the Court does not take lightly.
It has to be satisfied of a material change in your relationship circumstances since the conditional order was made, for the court to establish that your marriage has not in fact irretrievably broken down and you are reconciled.
Contemplating reconciliation and timing
You should not be dissuaded for reconciling or attempting to reconcile, and the court must acknowledge the liberal changes that the law of no-fault divorce has ‘heralded’.
You can attempt to reconcile for just under a year between conditional and final order without any enquiry from the Court. Reconciliation may be gradual, and time should be allowed for this to happen naturally.
Therefore, you can keep the application with the court until you have decided what you would prefer to do, reconcile, or divorce.
If over a year passes since the date that the conditional order was made, and you then decide that you have definitely either reconciled or not, the court would require a statement from you.
They will want to review your circumstances since previously granting a conditional order that the marriage had irretrievably broken down.
However, be warned. Any period over two years since the grant of a conditional order may amount to evidence that the marriage has not irretrievably broken down.
Reconciliation for such a long period could amount to a material change in circumstances, that invalidates the basis upon which the conditional order was made, potentially placing your application for a final order for divorce in jeopardy.
Conclusion
Our judge has been clear then, that any period of reconciliation under two years should be seen as an attempt at reconciliation, but not a bar to the Court allowing a final order for divorce to be made.
You need time to reflect. Without the pressure of a court timetable.
It seemed disproportionate as well, for the judge, in this case, to refuse the application for a divorce in the circumstances, because all it would mean is that your spouse or indeed you, could apply for a divorce again the very next day, incurring further costs and further delay.
The Court of course approaches such applications by exercising its discretion and that includes at the final order stage, taking into account all the facts known to it.
So, if you need us to discuss all of the variables available during the divorce process, including helping you make the application or respond to it on a fixed fee basis, please do contact us.
If you are considering reconciliation after a no-fault divorce, we offer a free initial half-hour consultation with one of our professional experts to discuss your particular circumstances in any family law enquiry.