At the best of times, making the decision to get a divorce is a difficult one. Over the coming months, many separating couples will also need to make a second decision – should they start divorce proceedings now, or wait until the new regulations?
“No fault divorce” is due to come into effect in April 2022, bringing a variety of changes to the divorce process. Many legal professionals have been campaigning for these reforms for decades, since the current laws have been in place since the 1950s, when divorce was viewed very differently by most of society.
We’re hopeful that the new legislation will allow for a move towards less contentious divorces and the preservation of strong family and co-parenting relationships after the end of a marriage.
However, it does leave those currently considering divorce with an additional decision to make. In this post, we hope to guide you through this limbo period and help you to make the right decision for your situation.
What does the current divorce process look like?
Currently, much of the divorce process is based around the idea that, when a marriage breaks down, there must be someone at fault. Because of this, to file for divorce, you must give one of 5 reasons:
– Your spouse has exhibited unreasonable behaviour that has made them impossible to continue living with
– Your spouse has committed adultery
– You and your spouse have been separated for 2 years and both agree to divorce
– You and your spouse have been separated for 5 years and you wish for a divorce
– Your spouse has deserted you for at least 2 years without your consent
Some couples who feel strongly that they don’t wish to place blame will agree to put their divorce on hold until the 2-year separation period is up. Others come to a compromise about the behaviours they agree to put on the legal paperwork in order to divorce more quickly.
Even in situations where there are specific actions to blame for the end of the marriage, the process of writing these down in enough detail, serving an ex-partner with them, and possibly dealing with amendments and defences can create more tension or ill-will. This, in turn, can make it more difficult to come to an agreement with your spouse about important issues such as childcare or your financial settlement.
The current system also allows one party to defend a divorce if they don’t agree with it, or if they disagree with the reasons their ex gave for the divorce. While this is rare, it can mean a longer, more expensive court proceedings.
What Changes to Divorce will there be in April 2022?
The Divorce, Dissolution and Separation Act will mean that couples no longer have to use one of the five reasons to prove that their marriage has broken down irretrievably. All the evidence that will be required is a written statement from at least one party, stating that the marriage is beyond repair. Couples will also be able to choose to file a joint application for divorce if they wish.
Other changes include:
– It no longer being possible to defend a divorce, unless you or your partner are not legally allowed to attain a divorce in the UK.
– Name changes for several legal documents- a Decree nisi will be a “Conditional Decree”, the “Decree Absolute” will be a “Final Decree”.
– A new 26-week minimum timeframe to complete divorce proceedings
Should I delay my application for a no-fault divorce?
This really depends on your unique situation. There are benefits both for waiting and for getting started right away.
If you’re feeling at all confused about which option is right for you, we suggest that you contact a legal professional for advice.
In the meantime, here are just a few of the considerations you may want to take into account.
Reasons to Wait
– If you were planning a separation period
If you were already planning to take some time apart before committing to a divorce, there are few reasons to change those plans.
Many of the disadvantages to waiting are time related. Therefore, if neither you nor your spouse are aiming for a speedy divorce, it may make sense to continue to delay until the spring.
Perhaps you and your spouse previously agreed to wait 2-5 years for a divorce that didn’t place blame on either party under the existing laws. In this case, you might want to touch base about how long you would like to wait once no-blame divorce is available to everyone.
Perhaps you’re simply taking time to consider the decision you’d like to make about your marriage. In this case, you may be comforted to know that the new regulations come with a “cooling off” period that gives parties time to reconsider.
– If you’re committed to an amicable divorce
Many couples were able to divorce amicably under the old system. However, the process of agreeing on reasons for divorce, describing behaviours to place blame, and serving divorce papers on a spouse was also emotionally difficult for many couples, and sometimes led to additional conflict.
Although divorce is rarely easy or pleasant, it’s hoped that the new regulations will remove some of these pressures. This might be appealing if you wish to have an ongoing relationship with your spouse, whether as friends or co-parents, or if you’d like to negotiate settlements in the most even frame of mind possible.
Under the 2022 changes, neither party will be required to take the full blame for the marriage ending. It will also be unnecessary to record difficult incidents from your marriage for the court. All that will be needed is written “statement of an irretrievable breakdown”, noting that your married relationship is at a definite end.
– If your spouse is not in favour of divorce
Conversely, if your spouse has indicated that they intend to make divorce as difficult to attain as possible, you may also have reason to delay.
While your ex may still be able to complicate negotiations for financial and child agreements, after April they will no longer be able to defend the reasons for divorce.
This is to avoid cases like that of the Alans, who remained married for years after Mrs Alan filed for divorce. This was due to her husband taking her to court contesting the behaviour she blamed for the breakdown of their marriage.
Under the new rules, one party believing a marriage has irreparably broken down is taken for evidence that the marriage is over. The other party’s feelings on the matter do not have to be considered. With this decided, you may avoid some expensive and time-consuming court proceedings as you begin your divorce.
Reasons not to wait
The chances of the legislation being delayed are getting smaller as the date grows nearer, but it has already been moved once – from its original implementation date last autumn – so there’s no complete guarantee.
Under the new rules, the minimum time it can take to get a divorce will be 26 weeks. Presently, uncontested divorces can theoretically be completed in less than three months, although this is unusual.
If you are looking for a quick, relatively uncomplicated divorce (for example, if you have only been married for a short time and already have an understanding about how your assets will be split) you may be able to achieve this more efficiently under the current system.
The divorces have already been moving more slowly through the courts during the Covid 19 pandemic, and it’s possible there will be a rush of divorces immediately after the no fault divorce legislation comes in. With this in mind, you may want to consider the timing of your application carefully.
– Financial Considerations
If you need judicial input into your finance situation, family courts will only accept financial applications if your divorce is already underway. This is one reason you might wish to start the divorce process sooner rather than later.
This might also be the right route for you if:
- You have reason to believe your spouse might use any extra time to hide or rearrange their assets.
- You believe your spouse might seize control of all marital assets or run up debts if you delay
- You or your spouse are facing financial hardship while waiting for a settlement
- You’re expecting a big change in your personal financial situation (such as receiving an inheritance or buying a property) which you do not wish to become a part of the marital pot.
– Child considerations
Court orders for child maintenance arrangements and consent orders can both be applied for before a divorce. Many couples who have never been married- or who are married and separated- successfully arrange how their children will be cared for and when they will see each parent.
However, you may prefer to arrange child maintenance during your financial negotiations – especially if they seem likely to involve court proceedings. In this case, it may make sense to not delay proceedings.
You and your spouse may also decide that there will be a smoother transition into your family’s new normal if you divorce sooner rather than later – for example, if splitting your assets is likely to affect the family home.
– Relationship dynamics
Having made the difficult decision to divorce, you may also feel personally that you do not wish to delay further. This may be due to wanting to officially move onto a new phase of your life, to maintain your momentum with the legal proceedings, or to reach a point where you’re no longer obliged interact with your ex.
There is no one correct way to feel about your divorce, so none of these emotions are wrong. However, it is recommended to speak to a solicitor to find out what actions will give you the best chance of reaching your goals.
If I choose to wait for a divorce, what can I do in the meantime?
If you choose to delay your divorce, there are still plenty of actions you can take to start building a life as an unmarried person. There’s also lots you can do to prepare for the divorce, to give the process the best chance of running smoothly once you decide to apply. These include:
- Seeking legal advice from a family lawyer to gain a better understanding of your position and rights
- Creating a separation agreement with your spouse to lay out temporary solutions for how joint assets will be used and any childcare considerations
- Moving out of the family home (if applicable)
- Arranging child maintenance payments (this can be done through the Child Maintenance Service if you’re worried about making contact with your child’s parent).
- Sourcing any paperwork you’re likely to need for financial settlement discussions (including the details of any pensions)
- Having preliminary discussions about your assets and/or child arrangements with your spouse (with or without a mediator).
- Filing for a consent order to make child arrangements legally binding
- Deciding if you would like to make a joint or single application for divorce
Still have questions? We’d love to talk to you
Harbour Family Law are specialist family solicitors serving the wider Bristol area. We excel in helping our clients find the best resolutions during divorces, dissolutions, and separations. If you’re feeling unsure about when you should apply for a divorce, or would like to find out where you stand, contact us today.