The Divorce, Dissolution and Separation Bill received Royal Assent in June 2020. From August 2021, this new legislation will introduce no-fault divorce as an option for divorcing couples, which is arguably the most significant change to this area of law in England and Wales since in forty years.
Following the introduction of this new legislation, couples will be able to use a more conciliatory and reflective approach without the need to attribute blame for the breakdown of the relationship. This, in turn, should reduce the impact of unnecessary conflict between both parties as well as any children involved, ensuring everyone can move forward more amicably and constructively.
However, if you are currently considering getting divorced or about to go through the divorce process, is it worth holding off until the new legislation comes into force?
What is the current law on divorce?
Under the current system, when applying for a divorce, it is necessary to show that there has been an irretrievable breakdown of the relationship. The only way to get a divorce without a statutory delay is if one spouse not only initiates proceedings but alleges fault on behalf of the other.
A divorcing couple must demonstrate one of the following five reasons as proof that the relationship has broken down irretrievably:
- Unreasonable behaviour
- Adultery
- Desertion for at least two years
- Separation for at least two years with the consent of both parties
- Separation for at least five years without the need for consent from both parties
If one party disagrees with the application or the evidence provided, they can contest or even prevent the divorce. Essentially, if a couple cannot or will not attribute blame, they will need to wait at least two years to get a divorce, and that is only if both parties consent. It will be five years before they can legally divorce if one party does not agree. Inevitably, the very nature of the current divorce process is confrontational and increases the possibility of conflict between the parties, making resolution often a lot harder.
In many cases, the parties are not in dispute - they just do not want to be together anymore. Even when there are grievances between the parties, the need to apportion blame only exaggerates the problems when it is not needed. It is for these reasons that it was felt there was a need to reform the law.
What is changing in relation to the law on divorce?
The new legislation introduces the no-fault divorce, where the parties simply need to provide a statement that the relationship has irretrievably broken down. There is no need to establish one of the five reasons to prove the breakdown.
Joint application
It will also be possible under the new law to make a joint application where both parties agree that this has happened (though sole applications will still be possible when there is no agreement). The ability to contest a divorce, separation or dissolution of a marriage will no longer be permitted under the no-fault divorce.
Changing the language used in divorce proceedings
Another change will be to the language used in a divorce:
- The decree nisi will become a conditional order. There will be a new minimum period of 20 weeks from the start of the proceedings to when this order can be made.
- The decree absolute will become the final order. The six-week timeframe between the conditional order and the final order will remain the same.
New timeframes
The new timeframe will give the parties six months to reflect so that they can determine that they do want to proceed with the divorce before it is finalised.
The 20-week period will also allow the parties to resolve the practical issues where reconciliation is not going to be possible. This will include matters such as how finances will be determined, including any maintenance payments and those relating to any children, such as where they will live and child contact arrangements.
Should you get divorced now or wait?
Just as every person is different, so is every relationship. It will depend on the facts of each case as to whether a couple would be better off divorcing under the current law or waiting for the new legislation to come into effect.
Even under the current law, the divorce process is not generally problematic since often both parties agree that the relationship has irretrievably broken down. Practically speaking, in most cases, the result will be the same under the new law or the old law. When a couple already wishes to divorce, and neither party is likely to contest it, then there is probably no reason to wait. You should get in touch with a specialist divorce solicitor to discuss your options.
Waiting to get divorced
There will be situations where the new law will make a difference to the whole process.
Currently, if one party can show adultery or unreasonable behaviour, but the other party contests this, the matter will progress through the courts, and this is likely to be both costly and lengthy as well as confrontational. Under the new law, the divorce cannot be contested, and so the process will be cheaper and a lot less stressful.
If one party wishes to get a divorce (and cannot show unreasonable behaviour or adultery), and the other party does not consent, then they would currently have to wait five years after separating to apply (or two years post separating when both parties consent).
‘Grave financial hardship’
In these situations, it may, therefore, be faster to wait until the new legislation comes into force. It is also the case that even if you have been separated for five years, your partner could contest the divorce if it causes them "grave financial hardship". This will not be possible under the new law.
How Owen, White & Catlin can help
Since every divorce is unique, it is advisable to get specialist advice from an expert divorce lawyer who can guide you as to the best route in your particular circumstances. Our family and divorce lawyers have a wealth of knowledge and experience concerning the law in this area and will ensure we achieve the best result for you. We can assist in straightforward cases, to defending more complicated divorce proceedings.
Contact our Specialist Divorce Lawyers in London, Surrey and Middlesex
Our expert divorce lawyers can assist clients who are considering a divorce. We will always attempt to resolve issues using non-litigious methods, including mediation, which generally take less time and cost less money.
If you would like to talk to us about our first-class bespoke legal service, then please contact one of our family law solicitors via our online enquiry form or by phone on 020 8890 2836.
