Pitfall 1
What if the applicant delays serving the respondent with notice of the divorce proceedings?
The 26 weeks (6.5 months) period between issuing the divorce application and applying for the final order starts at the date of issue of the divorce application and not from the date the respondent receives notice.
If you are the applicant you must serve the divorce papers on the respondent by midnight 28 days after issuing them.
Application for the Conditional order can be made 16 weeks following acknowledgement by the Respondent.
As the applicant, if you have ‘good reason’, you can apply for an extension of time to serve the Respondent outside the 28 day period using form D11.
The court should consider all the circumstances including the attempts you have made to serve the respondent within the 28 days time limit including whether you acted promptly but the Rules do not provide any help with ‘good reasons’ or what will happen if the court is not satisfied.
Will the court strike out your divorce application in this situation?
The new divorce law gives applicants an opportunity to delay service, tactically or out of sheer bloody mindedness!
Delaying service on the respondent will very likely exacerbate any heightened emotions generated by the divorce process which may have come as a complete surprise to a respondent who then has very little time to respond and is unlikely to have any basis for resisting a divorce they might or might not want.
All this is then likely to overflow into discussions around child and financial arrangements.
Pitfall 2
What if the applicant delays applying for the final divorce order?
If you are the respondent and the applicant delays applying for the conditional order to be made final you must still wait 4.5 months from the date of the conditional order (3 months after the time has expired for the applicant to apply which is 6 weeks and 1 days after the conditional order) before you can apply for a final order, a total time of 9.5 months from the date the divorce application was issued!
In a no-fault situation this makes no sense whatsoever but is the current state of the law.
How can this be fair on the Respondent in a no-fault divorce?
If there is no financial agreement or Final Financial Consent Order, this may have adverse consequences (see next section)
Pitfall 3
What if the applicant delays applying for the Conditional order
If you are the divorce applicant there may be good reasons for you to delay applying for a Conditional order. (A S 10.2 application is not available to you- see Pitfall 4)
For example, if you intend to apply for a pension order and it is very important that these pension orders are made (and quite possibly implemented) before the final divorce order is made it would be wise not to apply for a divorce conditional order because it may be very difficult if not impossible to stop the final divorce order being applied for by the Respondent if you want to delay this after the conditional divorce order has been made.
If you do apply for a Conditional divorce order and a final divorce order is subsequently made (because you have been unable to prevent it being made) and the pension scheme member (your former spouse) dies before you have your pension order, the pension scheme would no longer considered you to be the widow (having divorced) and therefore no longer entitled to pension widows benefits. You might well then have to make another financial claim under the inheritance law!
Rather than delaying the divorce proceedings, one answer may be to offer each other undertakings not to apply for a final divorce order until the final financial order (including pension order) is in place and perhaps implemented.
If you are the respondent and the applicant, for no good reason (see above), fails to apply for a Conditional order you would have to issue a completely new divorce application and the 20 weeks starts again!
Again, this hardly seems right and fair on the Respondent.
Maybe one answer will be for you, if you are the Respondent, to issue or threaten to issue your own proceedings and also apply to abridge (shorten) the 20 week period you would normally have to wait before you can apply for a conditional order. In this situation the Judge may be sympathetic.
Pitfall 4
What if the respondent wants or needs to delay the final order?
If you are the Respondent and need to delay the final divorce order until a financial order is in place (and implemented in appropriate cases) because perhaps you risk losing valuable pension death benefits (see above) you can apply under section 10.2 MCA to delay application of the final order.
S 10.3 states that there should be no final divorce unless financial provision made is reasonable and fair or the best that can be made in the circumstances.
A S10.2 application is not available to you if you are the applicant which is why it might be prudent to delay applying for the conditional order (Decree Nisi) if you are the applicant (see above)
Pitfall 5
What if email service is successful but postal service is not
The new law requires that as well as email service the divorce documents must also be sent to the physical address by first class post which seems a bit achaic.
What if you do not know the postal address or the other person does not have one or the postal documents are returned marked as unknown address and yet email service was successful?
Under the current provisions this would not be good enough service. It is hoped that this will be changed following a review of the law in the future.
Pitfall 6
What if you start as joint applicants and fall out
You can start the divorce together and end it on your own.
If you both wish to be joint applicants it is best to make sure that you are likely to co-operate when it comes to applying for the conditional and final divorce orders especially if it becomes necessary to delay applying for a final divorce order until a financial order is in place (see above).
If only one of you wants to apply for the conditional order, even though you jointly applied for the divorce, you will need to make sure that the other person has been served with notice of your intention to apply for the conditional order on form D11.
If only one of you wants to apply for the final order you will need to give the other person 14 days written notice of your intention to apply for the final order at which point the other person becomes the respondent rather than applicant 2 and could seek to delay the final order with a S 10.2 application (see above) until a financial order is made.
Therefore, give careful thought before agreeing to apply jointly.
Pitfall 7
What if you start as a sole applicant but want to apply for the final order as joint applicants.
You cannot start the divorce process on your own and end it together.
It is likely that many applications will start on a sole basis although joint applications are encouraged by the act.
In these situations although the respondent may not have wanted or may have resisted the divorce they may, during the course of the proceedings concluded that a divorce is inevitable and perhaps welcome the chance and symbolic benefit of ending the marriage together with a joint application for a final order.
Unfortunately, this cannot be done which is a great shame and flies in the face of the spirit and aspiration of the 26 week period of reflection during which it is hoped that having initiated the divorce the couple might have wished to end the marriage and no-fault divorce process ‘together’.
Hopefully, this will be remedied by a change of law in the future.
Pitfall 8
What if I want to claim my divorce costs from the respondent
On the 28th March 2022 the President of the Family Division has issued Guidance on the approach to claiming cost under the new divorce law.
Conduct in relating to the breakdown of the divorce will now be irrelevant but not conduct relating to the divorce proceedings especially if the Judge holds that it has been unreasonable such as evading service of the divorce papers and legal costs have been incurred as a result.
If you would like more information have a look at the Guidance in the resources document section to this chapter
There may also be scope to claim costs where the divorce proceedings are being disputed (see Q&A).
In these cases, if the defending party is unsuccessful the court will consider whether the pursuit of the defence was unreasonable. If the court determines that it was, it will normally determine that it would be appropriate to order that the unsuccessful defending party should pay the costs of the successful party.
If the court determines that the pursuit of that defence was not unreasonable, it will nonetheless consider whether to make an order for costs in any event in favour of the successful party to reflect the court’s decision on the specific issue.
Paragraph 9 of the Guidance states that: “… in the great majority of cases, including joint applications, where an application for an order for divorce, dissolution or (judicial) separation is not disputed and the parties have conducted the proceedings in a reasonable manner, a costs order would be inappropriate.”
The procedure for applying for costs is set out in Practice Direction 7A and paragraphs 12 and 13 of the Guidance.
In a standard case, the application notice or written evidence in support must set out the grounds on which a costs order is sought.
In the case of proceedings for divorce, dissolution or (judicial) separation the applicant should have regard to the guidance above and set out clearly any conduct in relation to the proceedings which is said to justify the making of a costs order.
Wherever possible the applicant should specify the amount of costs claimed, showing how the amount has been calculated;
Form N260 (Statement of Costs for Summary Assessment) is not required unless directed by the court. A respondent who opposes the making of a costs order or disputes the amount of costs claimed must file a witness statement in response and the court will normally deal with the application without a hearing, on the basis of the parties’ written statements.