To Divorce, or not to Divorce... Changes to Divorce Law from 6 April 2022

Big changes are afoot in family law. No fault divorce is coming into force on 6 April 2022, bringing the biggest change in family law in 50 years.

To put the current laws into context, the year they came in Elvis Presley gave the first concert performed worldwide on TV, US troops started leaving Vietnam and bell-bottoms and tie dye were all the rage. Society, religion and culture have moved on leaps and bounds and people's attitude to divorce, single parents and unmarried couples have too. The current divorce process requires reliance on one of 5 'facts', being the 'fault facts': adultery and unreasonable behaviour and the 'no fault facts': desertion; 2 years' separation with consent or 5 years' separation. 60% of divorces in England and Wales in the last 3 year used fault-based facts, thereby enabling the parties to separate without waiting the minimum no fault period of 2 years. The majority of divorces are now done via the court's online portal and the court has announced that the system will be down for a week at the end of March 2022 to allow for the changeover. As family lawyers we are discussing with clients the pros and cons of issuing now, versus waiting to issue using the new law.

Why Use the Current “Fault Based” Process (Before 6 April 2022)

✔️Urgency:

Where a case has an element of urgency, we would advise clients not to wait. The following scenarios are some examples of where we'd recommend this course of action:

• • If assets are at risk and a court application to deal with the finances needs to be made urgently. For example where the other party is selling, transferring, or hiding assets or moving assets offshore.
  • Where there's a 'jurisdiction race', where if we don't issue divorce proceedings now, there is a risk that the other party might start proceedings abroad if they have links to another country. It is often the case where the other jurisdiction may be less financially generous to a dependent spouse.

✔️Setting the record straight:

Clients who have been treated badly, or cheated on, often feel that they want this validated by recording this in a court document as the “official reason” for the divorce. There is an option in adultery petitions to name the person with whom the spouse committed adultery as a 'corespondent'. In divorces based on unreasonable behaviour, the petitioner must provide a statement setting out what the other party has done and how it's made them feel.

As family lawyers, we do not encourage naming the co-respondent in adultery petitions. In most cases, we try not to make statements of unreasonable behaviour too inflammatory as it only complicates matters, but for some clients they feel this is really important to them emotionally.

✔️Duplication of Costs/Process:

 If we have already drafted a divorce petition for a client, it may make sense to submit that to court now to prevent further delay and wasted legal costs by effectively starting again with the new process.

❌Starting Off on the Wrong Foot:

Requiring the petitioner to list the other party's unreasonable behaviour means the divorce starts on a sour note. This sets entirely the wrong tone when what follows are difficult discussions regarding dividing finances and agreeing child arrangements.

❌Blame Game:

There's a court record that one party has 'done wrong' and the other has 'been wronged'. This cannot be helpful either for the parties themselves to move on, nor for any children who may find out that one parent is deemed responsible for the breakdown of their family.

❌Reason For Divorce Often Doesn't Matter

Contrary to popular belief, the reasons given in the petition mostly have little, if any bearing on the division of the assets, and in most cases upon the child arrangements.

❌Possibility of Defended Divorce

The respondent has the ability to defend the divorce, (which happens in about 2% of cases) and results in costly litigation before even considering the finances and child arrangements.

❌“We've Just Grown Apart”

The system does not provide for couples who have simply grown apart and agree that they should divorce but don't want to sour things by setting out the other's unreasonable behaviour. Such a couple would have to wait 2 years and rely on their separation, but that involves being able to afford to run 2 households. For such couples, it makes sense to issue divorce proceedings under the new system.

New “No Fault” Process from 6 April 2022

✔️Contested Divorce Made Harder:

The ability to contest divorce has been removed, and is only possible where there is a dispute regarding jurisdiction, validity of the marriage, fraud or procedural compliance

✔️Joint Applications Possible:

Both parties can apply for the divorce together.

✔️End to Blame Game:

The removal of fault will reduce parental conflict and sets them on the right path to co-parenting. There will be no court record of wrongdoing.

✔️Kinder, Less Acrimonious Process:

Needless antagonism removed at the start of the process. This will hopefully help victims of domestic violence who no longer have to serve the perpetrator at home with a list of their wrongdoings in order to start the process to leave them.

✔️Language is Simpler and More Accessible

The Latin terms have been removed, thereby updating the language around divorce. 'Decree nisi' and 'decree absolute' become 'conditional order of divorce' and 'final order'.

❌New System

At the time of writing, the draft of the new divorce application has only been published. It will take some time to get to grips with the new law and iron out any wrinkles we discover as we navigate the new process.

❌Timing

A 20-week minimum period has been introduced from the petition to the decree nisi/conditional order of divorce. There is currently no minimum period. The 6-week period from decree nisi/conditional order to decree absolute/final order will remain. With this new 20-week period, one might think the new process takes longer, but in reality, very few divorces go from start to finish in under 26 weeks. The set periods are intended to give couples time to consider their financial and child arrangements.

Important Considerations when Divorcing

The divorce process has been streamlined and is now more accessible than ever to the general public for DIY divorces. However, it is still a legal process that has potential pitfalls that the lay person may not be aware of. Divorcing couples often fail to appreciate that whilst the divorce is important, it is also crucial to obtain a final financial order, which needs to be drafted by a lawyer and sealed by the court in order to be binding. Until that point, any financial claims the parties have or may have against each other as a result of the marriage remain 'live'. If you require assistance with divorce, dissolution of civil partnership, or separation generally, then please contact us to find out how we can help.