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The law relating to divorce and civil partnership is changing

Fiona O'Sullivan and Evie Niblock explain the Government's recent announcement about the Divorce Dissolution and Separation Act 2020

There has been a lot of media coverage in relation to the long awaited Divorce Dissolution and Separation Act 2020 which will introduce the concept of “no fault divorce” to England and Wales.  

The Government have recently announced that the Act will be implemented in April 2022. The Act will bring about the most significant changes to the law of divorce, dissolution and separation in almost half a century.

As the date has now been set for the introduction of the updated law, many separating couples are considering whether it would be beneficial to wait for the new process to be implemented, or whether to issue proceedings now, in accordance with the current law.

Part 1: What are the differences in the court processes?

This is the first in a two part series considering the issues, which identifies the primary changes in the process. The process under the current law and the process that will be introduced in line with the Divorce Dissolution and Separation Act 2020 are considered in the table below. These changes apply to divorce or civil partnership dissolution and are not an exhaustive list.

 

Current Law

Law in accordance with the Divorce Dissolution and Separation Act 2020

Who can apply?

Either party can apply but the person who files the petition is referred to as the “Petitioner” and the other person, the “Respondent”.

 

Parties can choose to apply separately or together.

Grounds

One ground – the irretrievable breakdown of the marriage.

However, irretrievable breakdown must be based on one of five facts:-

(1)   adultery*;

(2)   behaviour;

(3)   separation for 2 years with consent;

(4)   separation for 5 years without consent; or

(5)   desertion.

*not available for dissolution

If a couple decide to separate amicably where there has been no adultery, the only options without waiting for 5 years are to wait 2 years and separate with consent, or the petitioner will be required to allege the fault of the other party, citing their behaviour in the petition.

One ground – irretrievable breakdown supported by a statement.

The statement can also be a joint statement of both parties.

Defence

It is possible to defend proceedings for example by disputing the facts relied upon.

Although this is rare, the 2018 Supreme Court case of Owens v Owens highlighted the potential problem with the existing process when the court found that a wife had not provided sufficient evidence of her husband’s behaviour and the divorce was refused.

Where a divorce/dissolution is successfully contested, the parties will remain married until either one of them can rely on evidence of separation for five years.

Even then, the petition could be defended on the basis of financial hardship.

The court will take the statement of one or both parties as conclusive evidence that the marriage has broken down irretrievably.

It will no longer be possible for a party to defend the proceedings unless there is a challenge based on  technical issues such as jurisdiction, the legal validity of the marriage, fraud, coercion and/or procedural compliance.  

 

Timescales

Currently, there is no prescribed   statutory time period.

Once the petition has been issued,  the period from service of the proceedings to request for Decree Nisi/Conditional Order by the Petitioner can in theory happen very quickly.

The only statutory “brake” is the minimum 6-week and 1-day delay between decree nisi and decree absolute (or conditional order and final order) which can only be abridged in rare circumstances.

A typical timescale presently for the process is 4-6 months, although the recent move to the online court portal has accelerated the timescales slightly.

 

The Act will introduce a minimum 20-week timeframe between lodging the petition and applying for the conditional order.

The 6-week and 1 day delay between the conditional order and final order will remain.

This increases the absolute  minimum timescale to 26 week and 1 day.

The intention is that the parties will use this time period to consider reconciliation and to finalise arrangements for finances and children.

It is possible for the court dealing with a case to give permission for this prescribed waiting period to be shortened but again this is likely to be rarely granted.

Language

Some of the archaic language has been replaced: 

Decree Nisi (the legal document that confirms that the legal requirements for divorce have been complied with)

Decree Absolute (the legal document that officially ends the marriage)

Conditional Order (previously decree nisi)

Final Order / Divorce Order

(previously decree absolute)

 

Part 2: What do the changes mean to you?

There has been a lot of media coverage in relation to the long awaited Divorce Dissolution and Separation Act 2020 which will introduce the concept of “no fault divorce” to England and Wales. 

The Government have recently announced that the Act will be implemented in April 2022. The Act will bring about the most significant changes to the law of divorce, dissolution and separation in almost half a century.

As the date has now been set for the introduction of the updated law, many separating couples are considering whether it would be beneficial to wait for the new process to be implemented, or whether to issue proceedings now, in accordance with the current law.

This is the second in a two-part series considering the issues.

We consider below the advantages and disadvantages of waiting to issue a divorce petition until April 2022, once the provisions of the Divorce Dissolution and Separation Act 2020 have been implemented.

Advantages of waiting

Avoid the “blame game”

Under the new Act, where a marriage has broken down amicably the parties will no longer be required to place blame upon the other person or wait a minimum of two years. The requirement under the current law to cite behaviour could potentially lead to inventive drafting or embellishing behaviour of the respondent spouse.

Less acrimony

It is hoped that the Act will reduce the acrimony between separating couples to result in a more conciliatory process. Parties can work together to file a joint petition and a joint statement that the marriage has irretrievably broken down. With less acrimony it is to be hoped that issues in relation to finances and children can be resolved more amicably.

No defence

It will no longer be possible to defend proceedings under the new procedure. This may be beneficial to victims of domestic abuse or coercive/controlling behaviour from potentially becoming trapped in a marriage for five years before having the option to divorce if the other party will not consent.

Costs

Whilst there will be no amendment to the fees currently associated with the process, including the court fee of £550, there will potentially be a reduction in solicitors’ fees as the option to defend will no longer be available. It may also be easier to draft the petition without having to negotiate reasons that are cogent enough to be accepted by the court but mild enough not to aggravate the respondent.

Disadvantages of waiting

Five facts

If one of the five facts required to establish the irretrievable breakdown of the marriage is applicable to your circumstances, (e.g. adultery, behaviour, separation for two years with consent, separation for five years and/or desertion) there may be no material benefit in waiting to petition.

“Blame” and financial settlement

There is a common misconception that the reasons for the breakdown in the relationship will have a material impact upon the financial settlement. This is in fact very rare but in unusual cases it may be helpful to rely on the reason for the breakdown of the marriage (for example, very serious behaviour) as part of the claim for an improved financial settlement.

Assets of the marriage

All assets and resources are taken into consideration on a financial settlement, even those accrued post-separation (although in some cases, these may be treated differently by a court). You may agree a date of separation, but resources such as pensions, savings and property will be valued at the time of your settlement, not necessarily at the date of separation. Accordingly, any delay in finalising a divorce could potentially adversely impact the financial settlement.

Defence

If you are a party to the marriage that does not wish the proceedings to go ahead, for example as a result of financial hardship, if a petition is issued under the new divorce process, this would remove any right that you have to defend the proceedings.

Interim remedies

If you need to secure a financial court order quickly (i.e. to secure the sale of a property) or seek an order for interim maintenance, you should not delay issuing a petition (and thereafter an application for financial remedy).

Jurisdictional disputes

If there is the possibility of proceedings taking place in one or more legal jurisdictions, often the party who issues their petition first can secure an advantage. Expert and urgent advice should be taken in all potential jurisdictions. Any delay could prejudice your case.

Timeframe

The new procedure is longer with a minimum 26-week period between the petition and the final order. For those who do not wish to extend the process, waiting for the new rules would mean that the divorce or dissolution would not be finalised until autumn 2022 at the very earliest. There could also potentially be a surge of divorces when the new procedure is introduced which could result in further delays.

Online court portal

Another recent development in the divorce and dissolution process is the implementation of the online portal to process divorce/dissolution and financial remedy applications. This has resulted in a much more streamlined process with improved accessibility for separating couples. The online portal will deal with proceedings under the new Act in due course.

The above list of advantages and disadvantages is by no means exhaustive and the decision whether to delay filing a petition is entirely dependent upon individual circumstances. Making the decision to issue proceedings can be difficult and complex. We recommend seeking the advice of a solicitor to assist you with weighing up your options and to consider how and when to begin the process.

If you need further advice, contact our divorce and separation solicitors.

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