Some lawyers and family courts are expecting a surge in divorce applications this month when a new ‘no-fault’ law comes into effect, making it easier for couples to divorce, writes David Hodgson, a Partner in our Family & Divorce team.
The Divorce, Dissolution and Separation Act 2020 comes into force on April 6 2022. Recent statistics have shown a decline in divorce rates across the country leading some to think that some couples are waiting for the new law to be introduced to initiate a divorce.
The new law of divorce is the most radical change in the law of divorce in England and Wales for around 50 years.
From April 6 2022, one or both parties will just need to state that their marriage has irretrievably broken down without specifying a reason. There will no longer be a need, nor indeed will it be possible, to cite the reason for the divorce which previously had to be one of the following; adultery, behaviour, desertion or a period of two separation with the consent of both parties and 5 years if not.
Marriages end for a variety of reasons; sometimes it is clearly the fault of one of the parties, sometimes not. Those who wish for there to be a formal record ascribing blame for the breakdown of a marriage will now be prevented from doing so.
The new Act also removes the possibility of contesting the divorce. The only grounds to defend any divorce will be confined to narrow technical issues not because one of the parties simply does not wish for the divorce to proceed. For the first time, it also enables both parties to make a joint application for divorce rather than any application having to be initiated by one party, which had previously been the case. It also simplifies the legal language used in the process.
The changes will apply to all divorces commenced after April 6 2022. There are 2 decrees made by the court in any divorce, a preliminary decree called a conditional order (previously decree nisi) and final order (previously decree absolute). The conditional order means that the couple’s marriage still subsists but they have complied with the necessary formalities for a divorce. The final order dissolves the marriage. The minimum period between the start of a divorce and the granting of a conditional order will be 20 weeks. As is the case now, a couple must also wait 6 weeks and a day from the conditional order before they can apply for a final order. Therefore, the total minimum period for a divorce will be 26 weeks.
Recently the court service has encouraged the use of their online platform which has streamlined the process for obtaining a divorce for those who are legally represented and those that are not. There has been an increase in those choosing to deal with any divorce without involving a legal expert and this trend is likely to continue with the introduction of the new law of divorce.
However, there are pitfalls.
As I have written elsewhere on this this blog the new legislation will not cover other areas of matrimonial law such as financial provision or child arrangements which tend to be more complex. The law in respect of these issues is not set to change.
Financial provision on divorce is handled in separate proceedings. Any divorce will dissolve a marriage, it will not deal with any financial claims arising from that marriage and these need to be addressed by the court making a financial order. Even for those who do not wish to bring any financial claims should ensure that they are dismissed in a financial order to prevent any claims being brought in future, long after any divorce.
The timing of any divorce is also important when it comes to financial matters. For example, if a couple divorces before financial matters are resolved, they are no longer entitled to any spousal benefits under the terms of any pension that their former spouse has, should their former spouse die. Such benefits will therefore be lost but can have significant value. Divorce also affects rights of inheritance.
For those contemplating a divorce and for those who may have initiated a divorce themselves it is important that they obtain specialist legal advice so that their financial position is protected, certainly long before any divorce is finalised.
Bishop & Sewell’s Family lawyers have the knowledge and experience to guide you through these challenging times and have rankings in the Legal 500 and Chambers & Partners for their expertise.
If you are affected by similar issues or would like to have a related discussion in confidence, please call me quoting Ref CB300 on 020 7091 2869 or email: firstname.lastname@example.org
The above is accurate as at 04 April 2022. The information above may be subject to change during these ever-changing times. The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.