Since the beginning of 2020 there’s been a lot of media coverage about divorce. From various news outlets commenting on and claiming ‘divorce day’ has arrived, to headlines about the introduction of no-fault divorce. The latter has resulted in several calls from individuals either thinking of divorce, or part way through the process asking what this all means.
On 8th January 2020 the Divorce, Dissolution and Separation Bill entered Parliament, a blessed relief to all those who have spent years campaigning. This certainly moves the introduction of no-fault divorce in England and Wales a step closer. However, there’s still quite a long way to go before couples can take advantage of any change.
To help blog readers we’ve put together this useful guide to remove some of the confusion and help couples and individuals decide what to do next.
How couples currently get a divorce
The first thing to say is that the parties to the marriage cannot currently apply for a divorce together. Either the husband or wife applies for a divorce and to do that they need to choose one of the grounds below to prove that the marriage has irretrievably broken down
- Desertion, where one of the parties has deserted the other for two years or more. This is rarely used.
- Separation, either with consent after 2 years or without consent after 5 years.
- Adultery, although the one most often cited by the media in high profile cases, it is used in only around 10% of divorce cases. It is the ground that can cause the most acrimony and upset and is one we advise clients to avoid if possible.
- Unreasonable behaviour is the most common ground cited in divorce cases today, used in nearly half (46.3% in 2018) of cases.
So, at the moment, there isn’t an option a couple to apply together, having agreed their relationship has come to an end. Instead it’s ‘wait’ or ‘blame’. Under current law it’s also possible for divorce to be contested, that is for the other party (known as the respondent) to say they don’t want a divorce. This can be a very drawn out, expensive and upsetting process.
Is amicable divorce possible now?
Of course, a good divorce solicitor will always advise ways in which to keep acrimony to a minimum. Using less controversial examples of unreasonable behavior or discussing the reasons you are planning to use with your spouse before you issue the proceedings can help reduce the acrimony. We’ve seen divorce petitions with everything from snoring or not loading the dishwasher, to leaving a sweaty squash kit in a sports bag or chewing loudly when they eat! If agreed in advance these can be fine, but for someone to read them for the first time in a formal document from the court can immediately put the criticised party in the wrong frame of mind to agree or help the process to progress smoothly.
The changes to the law should do away with this and lead to a more amicable process rather than encouraging “nitpicking”.
How will divorce change?
The changes will simplify the process of divorce as they replace the current requirement to evidence either a conduct or separation ‘fact’ with the provision of a statement of irretrievable breakdown of the marriage (couples can opt to make this a joint statement).
The possibility of contesting the decision to divorce, is also removed, as a statement will be conclusive evidence that the marriage has irretrievably broken down.
The changes that this Bill provides for are as follows:
- The parties will only need to produce a statement of irretrievable breakdown – no blame will be apportioned
- There will be the option of this statement being submitted jointly by both parties
- The option of contesting the divorce will be removed
- There will be a period of reflection – in all likelihood 20 weeks – from when the petition is issued to when a conditional decree can be made. This ensures the parties have time to consider the decision and it’s not simply a “spur of the moment” reaction.
Children are likely to be among the major beneficiaries of no-fault divorce. The current system requires people to focus on what a bad partner they had which makes it twice as difficult to focus on what a good parent they can be. Without the need for blame to be apportioned, it is likely that the process will be less “angry” for many, helping children get through a very difficult time. While the change in the law is not a silver bullet, it will certainly help avoid increased conflict. It will also help the co-parenting that will need to take place even after the marriage has been dissolved.
Will I still need a lawyer with no-fault divorce?
The role of the divorce lawyer will change but they will still have a role in
- Advising on how finances should be divided on divorce, including things like who will live in the family home, how pensions and other savings and investments might be split and whether there is a requirement for maintenance payments.
- Preparing documents, for example a consent order to create a legally binding agreement between the parties.
- Advising on entitlements and helping to negotiate. If no agreement can be reached your solicitor will advise as to the merits of issuing court proceedings and will represent you within these proceedings.
- Implementing orders, whether by consent or decided by the court.
- Advising and supporting parents who are in dispute to reach arrangements about how they will care for their children.
- Preparing cases to be presented to the court and conducting the proceedings where disputes cannot be settled.
Obviously, this isn’t an exhaustive list but hopefully you see the point that the divorce itself can often only be a small part of the legal process of relationship breakdown.
When will the changes happen?
The honest answer is that we still don’t know. The earliest possible date for ‘no fault’ divorce is early 2021, with some suggesting between 18 and 24 months from now is a more realistic estimate because of the need to amend forms, rules after assent. The legal process, as we know, rarely runs smoothly or quickly!
For those going through a divorce when the changes do finally become law, nothing is going to change. If the process is started under the existing rules, that process will be played out to the end. It is only for those starting the process after the Bill becomes law who will benefit.
That said, there is no reason why those embarking on divorce beforehand should expect an acrimonious split. Approaching the process in the right frame of mind and engaging an experienced family law specialist can – and should – mean that a couple can get through the process with minimum animosity so all involved can move on with their lives.
Summary on no fault divorce
- As at January 2020, nothing has changed. Anyone wanting a divorce is still required to show a ‘valid’ reason for their divorce or apply following a period of at least 2 years separation.
- The expectation is that within the next 12 months to 2 years divorce law will change making it possible to apply for divorce without apportioning blame or waiting a minimum of 2 years.
- The change in the law should make the process of divorce less acrimonious.
- A couple getting a divorce now or in the future should always take advice on how to unravel their financial affairs.
- Parents getting divorced now or in the future should put their children at the centre of their plans and focus attention on how they will share parenting responsibilities.
Although there are those who argue a no-fault divorce will make divorce “easier” and therefore denigrate the institution of marriage, The Law Society, Resolution and other organisations connected to divorce law have long been campaigning for there to be a no-fault divorce. At Woolley & Co we have always been advocates of no-fault divorce, so we are delighted to see that progress is being made.
Divorce solicitor, King’s Lynn