I am speaking to many people currently who want a divorce and have asked whether they should wait until the “no-fault” divorce comes into force next April, so I thought it would be helpful to explore this in a blog post.
Clearly, this is a factor to take into account when making a decision as it will potentially reduce any animosity. However, each case must be looked at on its own merits.
What are the new divorce law changes?
Married couples in the region could soon find divorce proceedings less acrimonious under the new “no-fault” divorce legislation which will come into force on 6 April 2022. This brings long-awaited reforms to an area of law that has not changed for almost 50 years.
At present, couples wanting to divorce must rely on one of five facts to prove that their relationship has irretrievably broken down. These facts are:
- Unreasonable behaviour
- Desertion for at least two years
- Separation for at least two years, with the consent of both parties
- Separation for at least five years even if one party disagrees there should be a divorce.
Most couples do not want a lengthy delay before initiating a divorce, meaning they are forced to rely on unreasonable behaviour even where they would prefer to avoid this. This can lead to anger and resentment when grievances are aired, spilling over into and affecting negotiations about financial settlements and childcare arrangements, despite the reasons for the divorce having no bearing on those matters in most cases. In other cases, people can feel stuck in their marriages because they wish to avoid acrimony and wait to rely on a period of separation.
The outdated divorce process has been criticised for many years for causing unnecessarily conflict. The new law removes the requirement to establish one of the five facts, allowing couples to divorce with dignity and without attributing blame. Couples who have naturally drifted apart or decided they want different things in life are therefore welcoming the news.
The archaic legal terminology associated with divorces will also be updated to make the process easier to understand. The Decree Nisi will become a ‘Conditional Order’ and the Decree Absolute will become a ‘Final Order’.
Should I get divorced now or wait until next April?
Each case is different and whilst the new reforms may reduce acrimony in respect of the petition itself (where reasons have to be stated and “blame” may have to be attributed) there may be other, more persuasive reasons to start the divorce proceedings as soon as possible. These include:
1. Financial disputes
In cases where there is a dispute in relation to finances and judicial input is required, a divorce petition needs to be underway before a financial application can be made. The Family Courts cannot make any financial orders to deal with that dispute unless a petition has been issued.
There are several circumstances in which it may jeopardise one party’s position to delay proceedings. For example, where there is:
- very little transparency about the financial circumstances, giving rise to mistrust or other concerns about what may be happening “in the background”,
- a risk of one party seizing control of all the assets,
- a concern about a party hiding or dissipating assets, or rearranging their affairs to the detriment of their spouse,
- a financial imbalance between two spouses which may result in a party suffering from financial hardship.
In these circumstances it may indeed be foolish to delay proceedings.
2. Financial agreements
In other cases where there is an agreement in relation to finances, it is important to note that any settlement is not legally binding until a Judge has approved the financial order. The Courts do not have jurisdiction to endorse financial orders until the Decree Nisi (or “Conditional Order” in the new terminology) has been pronounced in the divorce proceedings, and it can take several months to reach this stage of the divorce process.
I have come across many cases in which couples have discussed or agreed a financial settlement between themselves, only to find that one party resiles from the agreement and goes back on their word, leaving the other in a very difficult financial position and this can on occasions result in costly litigation
Whilst we all hope that people who have shared part of our lives with will “do the right thing” and stick to their word, as lawyers we see all too often that this is not always the case when feelings or situations change.
3. Moving on with your life
In many cases, once a couple have made the decision to divorce, it makes little sense to delay. Most want to start putting put arrangements in place to move on with their lives.
As well as the many emotional and practical reasons for progressing a divorce in a timely manner, there may also be external factors that necessitate expediency. A recent example of this has been the potential for divorcing couples to take advantage of the temporary stamp duty holiday to buy a new property as part of their future housing and living arrangements.
4. Toxic relationships
Another common reason to move forward with a divorce now rather than later is if two people are living in a toxic relationship, it may simply not be healthy to remain married and/or living together.
5. Potential further delays
The Family Courts are already under significant pressure due to the devastating impact of the Covid pandemic on many marriages and family lawyers are braced for a further ‘spike’ in cases next year once the new rules come into effect.
It is ultimately an individual decision that needs to be made having regard to a person’s particular circumstances with the assistance of legal advice, but anyone wishing to wait until next year should bear in mind there may be potential further delays to factor in down the line.
Deciding when is the right time to divorce
In summary, as family lawyers we see every kind of situation and can advise on the right approach for individual circumstances. We understand that divorce can be a highly emotional journey in which matters of principle hold a great deal of weight.
It is welcome and positive news that the “no fault” divorce will finally come into effect, however most conflict usually arises over finances and children. As such, in many cases (with the exception of people who aren’t sure if they actually want a divorce – but that’s a topic for another blog!) it makes sense to move forward to resolve these conflicts at the earliest opportunity.
The benefit of speaking to a family law specialist is that we can cut through the emotional fog to give a clarity on individual circumstances when it comes to the legal process, advise on the best approach for your desired outcomes, and allow you to proceed with confidence.
As a specialist family lawyer, Yorkshire based Silk Family Law associate Matthew Miles specialises in all aspects of divorce and family law. Contact Matthew on 07593 583785 or firstname.lastname@example.org.
Image credits: Zoriana Stakhniv (main header image) and Fred Moon (couple outside bar).