Divorce and Dissolution in English Law

Introduction

Divorce and dissolution of civil partnership in England and Wales were fundamentally reformed by the Divorce, Dissolution and Separation Act 2020 (DDSA 2020), which came into force on 6 April 2022. The Act introduced a no-fault divorce system, replacing the previous requirement to prove the irretrievable breakdown of the marriage by reference to one of five facts, including adultery and unreasonable behaviour. The reform removed blame and conflict from the divorce process, enabling couples to divorce without assigning fault.

The No-Fault Divorce System

The DDSA 2020 amended the Matrimonial Causes Act 1973 to provide for divorce on the basis of a statement of irretrievable breakdown, without any requirement to prove fault or separation. The sole ground for divorce remains the irretrievable breakdown of the marriage, but the requirement to establish breakdown by reference to a fact (such as adultery, unreasonable behaviour, desertion, or two or five years’ separation) has been removed.

Under the new system, one or both spouses may apply for a divorce by making a statement that the marriage has broken down irretrievably. The statement is conclusive evidence of irretrievable breakdown, and the court is required to accept the statement without requiring evidence. The respondent may not contest the divorce on the basis that the marriage has not broken down irretrievably.

The application may be made by one spouse (a sole application) or jointly by both spouses. The process is entirely conducted online through the government’s digital divorce service.

The Process

The divorce process under the DDSA 2020 involves two stages: the conditional order and the final order.

The applicant first submits an application to the court, together with a statement of irretrievable breakdown. The court processes the application and, if satisfied that the jurisdictional requirements are met, issues a conditional order — the equivalent of the former decree nisi. The conditional order confirms that the applicant is entitled to a divorce, but the marriage remains legally in force.

After a minimum period of six weeks from the conditional order, the applicant may apply for the final order — the equivalent of the former decree absolute. The final order dissolves the marriage, and the parties are free to remarry. The minimum period ensures that there is time for financial matters to be resolved before the marriage is dissolved.

Financial Remedies

The dissolution of a marriage or civil partnership raises issues of financial provision. The court has wide powers under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 to make financial orders, including: periodical payments (maintenance); lump sum orders; property adjustment orders (transfer of property, including the family home); pension sharing orders; and orders for the sale of property.

The court’s objective in determining financial remedies is to achieve a fair outcome, having regard to the factors set out in section 25 of the Matrimonial Causes Act 1973. These factors include: the income, earning capacity, property, and financial resources of each party; the financial needs, obligations, and responsibilities of each party; the standard of living enjoyed by the family before the breakdown; the ages of the parties and the duration of the marriage; any physical or mental disability; the contributions made by each party to the welfare of the family; the conduct of the parties (only if it would be inequitable to disregard it); and the value of any benefit that either party will lose the chance of acquiring.

The leading case on financial remedies is White v White (2001), in which the House of Lords established that the court must check its provisional assessment of a fair outcome against the yardstick of equality — that there is no discrimination between the roles of breadwinner and homemaker. The Supreme Court in Radmacher v Granatino (2010) held that pre-nuptial agreements may be given dispositive weight where they are freely entered into, with full disclosure, and where it would not be unfair to hold the parties to their agreement.

The Clean Break

Section 25A of the Matrimonial Causes Act 1973 requires the court to consider whether it would be appropriate to order a clean break — a final settlement that terminates the financial obligations between the parties. The clean break principle aims to promote finality and independence, enabling the parties to move on financially after divorce. The court will order a clean break where possible, particularly where the marriage was short and both parties are financially self-sufficient.

Mediation and Alternative Dispute Resolution

The family justice system encourages the resolution of financial and children disputes through mediation and other forms of alternative dispute resolution. The court may require the parties to attend a Mediation Information and Assessment Meeting (MIAM) before issuing an application for a financial or children order.

Conclusion

The no-fault divorce system introduced by the Divorce, Dissolution and Separation Act 2020 represents a significant reform of the law of divorce in England and Wales, removing blame and conflict from the dissolution process. The financial remedies framework, with its emphasis on fairness, the yardstick of equality, and the clean break, provides a structured approach to the financial consequences of divorce while promoting finality and independence.