How is divorce law changing and do I need to wait for it to come into force?

No fault divorce comes into force in April 2022 and will remove the need for parties seeking a divorce prior to a period of at least 2 years separation to “blame” the other.

The current divorce laws can increase the acrimony at the outset, requiring a spouse to prove unreasonable behaviour, adultery or desertion unless they wait for 2 years from separation and the other spouse provides their consent, or 5 years if that consent is not forthcoming.

The new divorce law will instead allow for a statement of ‘irretrievable breakdown’ and a joint application for divorce to be made without a finger being pointed at either spouse and without having to wait for a period of separation to elapse.  Using unreasonable behaviour and adultery will no longer be possible, which may leave some feeling aggrieved.

There will be one ground for divorce which is the irretrievable breakdown of the marriage but instead of having to prove one of the current five facts, a simple statement that the marriage has broken down will suffice.  It will not be possible to defend a divorce based on a statement of irretrievable breakdown alone (unless an issue over the validity of the marriage arises).

Under the new law, once a petition has been issued, the issuing party would need to wait 20 weeks before they can apply for a “Conditional Order” (currently known as a Decree Nisi) and after obtaining a conditional order, they must wait an additional 6 weeks before they can apply for a “Final Order” (currently known as a Decree Absolute) which signifies that the marriage/civil partnership has been fully dissolved. Accordingly, the whole process has to take a minimum of 6 months, with the petitioner being asked on three occasions whether they wish to proceed.  Since the divorce procedure has moved online this year, we have experienced divorces being concluded within a shorter timeframe of approximately 4-5 months, so arguably the new process will take longer.

We are often asked should I wait until the new law comes into force or proceed now.  This can depend on individual circumstances.  You may not have grounds to proceed under the current law without alleging fault, which you may be hoping to avoid, but there can also be advantages to not delaying as Family Law solicitor Rachel Smith  summarises below:

1. To make a financial agreement legally binding so it can be safely implemented without delay. In cases where there is an agreement as to how to divide and deal with the finances/assets of the marriage, this will only become legally binding on the parties once approved by the Court and it cannot be approved by the Court until after decree nisi/conditional order has been pronounced.  We would always recommend that any agreement is not implemented until there is a court approved order, so the sooner the court approved order is available, the sooner any agreement can be safely put into effect.  Delay can also sometimes result in one party looking to renege on an earlier agreement.
2. Where finances require resolution sooner rather than later, and there is no scope to agree and Court proceedings are therefore required. You can only issue Court proceedings following the issue of divorce proceedings.  You may not be able to risk delaying if there are fears that one party may be seeking to move, hide or dissipate assets to place the same out of the other parties reach.
3. To be able to move on with your lives sooner rather than later, especially if you have no option but to remain under the same roof until the finances are resolved which can be very uncomfortable or even dangerous for some.
4. To avoid administrative delays once the new law comes into effect. There could potentially be delays whilst the court and all those involved in the process get used to the same and any teething problems are solved.  It may be the Court experiences a higher demand on applications to issue as a number of people may be choosing to wait.

If the above apply to you and you would rather not delay, we can advise on the content of an unreasonable behaviour petition in order to keep the allegations as mild and non-contentious as possible.  For further information to assist you in making a decision please contact our family team on 0191 281 6151 or email marketing@mincoffs.co.uk.