The Divorce, Dissolution and Separation Act 2020, which passed into law on 25 June 2020, brings “no fault” divorce to England and Wales for the first time. We now know that it will come into force on 6 April 2022, so what does it mean if you are contemplating divorce now?
Current divorce law – in force until 5 April 2022
Under the current law, unless you are prepared to wait for at least two years (if both parties consent to the divorce) or five years (if one party does not consent to the divorce) there is no way for couples to start the divorce proceedings without one of them blaming the other. To obtain what the tabloids like to refer to as a “quickie divorce”, any one seeking a divorce has to blame the other to prove that their marriage has irretrievably broken down. The available facts are:-
- One spouse has committed adultery and the other finds it intolerable to live with them; or
- One spouse has behaved in such a way that the other cannot reasonably be expected to continue to live with them.
The other blame-based fact is that one spouse has deserted the other for a period of at least two years. However, that is almost unheard of and anyway, it still involves a 2 year wait.
The current system also allows spouses to defend the divorce or cross-petition. Although this is very rare, it leads to court hearings, significant delays and significant costs.
Even though the reasons for the breakdown of the marriage are only of interest to the parties and make no difference to financial outcomes or anything which we lawyers view as relevant, this element of painting one of the spouses as responsible for the breakdown can become a major point of conflict for the couple, and often leads to friction when they try to sort out the other more important issues which arise when a marriage fails, such as the arrangements for their children or how they divide their assets. This often leads to widening of existing divisions and can be an obstacle to having a good relationship after divorce, which is particularly important where a couple have children and need to continue their parenting obligations long after they part.
The new divorce law
From next April, spouses will be able to apply for a “Divorce Order”. This will dissolve the marriage on the ground that the marriage has broken down irretrievably. Importantly, neither spouse will have to demonstrate the irretrievable breakdown by relying on one of the old blame-based facts. Under the new system, the parties need only send a statement to the court which will be treated as conclusive evidence of the irretrievable breakdown. It will still be possible for just one of the spouses to apply for a divorce, however, the new legislation will permit couples to jointly apply to the court for a divorce and separate as amicably as possible, and without apportioning blame.
The new divorce procedure
The new divorce procedure has been simplified and the previous old fashioned legal language has been modernised, making it easier to understand the process from the outset. The process will still involve the two stages of Decree Nisi and Decree Absolute. However “Decree Nisi” will become a “Conditional Order” of divorce and “Decree Absolute” will become a “Final Order” of divorce.
Further, the new legislation also removes the ability for one spouse to contest the divorce.
These changes should reduce the conflict and stress which the breakdown can cause, and will hopefully make the process simpler.
New timescales for the divorce procedure
A new minimum time period of 20 weeks will be introduced. This means that 20 weeks must elapse from when the divorce application is filed with the court, before parties can apply for a Conditional Order. The purpose of this window is to allow spouses a period of “meaningful reflection”. If, after the spouses have reflected, they still wish to progress the divorce, they must confirm this to the Court when they apply for a Conditional Order. The Conditional Order will not be made final until at least six weeks have passed. Therefore, in theory, the whole process could take 26 weeks. This is unlike the current process where there is no minimum period, but realistically the volumes of cases that the Court processes mean a substantial wait for even the most straightforward divorce to go through. Unless the Court systems are efficient and staffing levels improve, even the new simplified process may well take longer than the 26 week minimum.
It is possible to apply to shorten the timescales in exceptional circumstances. By the same token, the spouses may also delay an application to make the Conditional Order into a Final Order, if the spouses are still resolving the financial aspects of the divorce.
What next?
Although the new law has been passed and we know when it will come into force, the nuts and bolts of the new system have still to be worked out. Forms, procedures, and court IT systems still need to be created to enable the changes to start working. It will be a learning curve for everyone working in divorce!
Our prediction is that anyone who wants to get on with their divorce now will probably proceed under the current fault-based system, but anyone who is recently separated and had planned to wait for the 2 years of separation to pass will now be able to start their divorce next April, possibly much sooner than they had originally thought.
Remember however, that getting divorced is just the tip of the iceberg; your status will change so that you are no longer married, but in itself it will do nothing to sort out the much more significant things which arise when a marriage fails – such as working out the arrangements for any children and deciding how the assets of the marriage should be shared. Those issues will require just as much careful consideration as they do now.
For further information contact us on 0330 400 4040 or visit our website: www.haroldstock.com
