Should You Wait for 'No Fault' Divorces?

The Current Law

Currently, in England and Wales, to get divorced you must demonstrate that the marriage has irretrievably broken down using one of the following reasons:

• Your spouse has committed adultery with someone of the opposite sex
• Unreasonable behaviour
• Separated for at least two years and your spouse consents to the divorce
• Separated for at least five years
• Desertion

The law is changing as this was considered outdated and it makes separation more difficult and acrimonious for couples because they must choose to either separate and wait two years before divorcing (five years if one party does not consent) or one person must blame the other by providing examples of the other’s unreasonable behaviour, or adultery.

If blame is cast, this can create more difficulties when the parties are trying to agree how the matrimonial assets should be divided or how childcare should be shared.

What Is the New Law?

There are three main changes to the new law:

• Absence of blame - The parties will no longer have to cast blame or separate to divorce. It will be enough to simply state that the relationship has broken down and some couples will be able to make a joint application for divorce if they wish, helping to reduce animosity.
• Removing objections - It will not be possible to contest a decision to divorce simply because one party does not want the divorce to go ahead.
• Timing - There will be a minimum time period of 20 weeks from the date the petition is first filed until the Conditional Divorce Order (currently known as Decree Nisi) is obtained and a further period of six weeks before applying for the Final Divorce Order (currently known as Decree Absolute). This will increase the minimum time period required for a divorce to be finalised. However, in practice, most divorces are not finalised within six months due to ongoing discussions about the division of finances.

Should Divorcing Couples Wait Until the Autumn to Issue Divorce Proceedings?

Potential benefits of waiting include:

• The divorce may be more amicable as no-one needs to be blamed
• This may result in reduced legal costs if discussions about a financial settlement and child arrangements are less contentious than they might have been
• Waiting could work best if one spouse is likely to object to the divorce (and no adultery has taken place).

However, waiting to divorce may cause more problems than it solves in some cases. For example:

• If you agree a financial settlement now but wait to start your divorce petition under the new law you will not be able to obtain a court order recording the financial agreement. This means that any agreement reached relating to the division of finances will not be legally binding and could be altered later at the time of the divorce. We recommend that finances are not divided prior to the divorce.
• In addition, if there is a dispute in relation to your finances, you will not be able to apply to the Family Court to assist with the dispute until you begin the divorce process. An ongoing dispute could increase animosity and stress for both spouses.

Ultimately, the right thing to do will depend on the individual circumstances of each couple. To discuss your options please contact Samantha Hickman in our Family Law team on 07464 544828, or complete the form below.