Divorce laws in England and Wales are to be overhauled allowing married couples to divorce faster and, hopefully, with less acrimony. The plans come after a 12 week public consultation which showed widespread support for a ‘no-fault’ divorce. It represents the biggest change in divorce law in 50 years.
Under current divorce laws, one spouse has to allege adultery or unreasonable behaviour if they want to issue a petition straight away. Otherwise you need to wait a period of two years (with your spouse’s consent), wait a period of 5 years (without your spouse’s consent) or be able to show your spouse has deserted you. The current law therefore operates a fault based system.
Many see this process as exacerbating the stress and tension of having to separate. If there are children involved it can potentially expose them to ongoing conflict between their parents during the divorce – and afterwards. This can have a damaging long-term impact on them.
Although The Family Law Company works to help people resolve issues in a non-confrontational way, when blame and fault are thrown into the mix, they can aggravate matters. This is detrimental to couples wanting to try and reach a sensible, amicable arrangement for the financial matters arising from the marriage breakdown along with living arrangements for their children.
The new law proposes for ‘no-fault’ to be apportioned. This means that one party simply needs to state that the marriage has broken down irretrievably. Justice Secretary David Gauke said the change would help in ending the blame game.
The new law imposes a minimum timeframe of 6 months from the petition stage to decree absolute (the final decree ending the marriage). After this, the applicant will be required to confirm their decision that they still want a divorce before the divorce is actually granted. This period gives people the opportunity to reflect and change their minds should they choose to do so. There will also be an option for couples to apply for a divorce jointly.
However, as yet there is no date for the introduction of the new law, and so the fault based divorce system remains. It is always advisable to obtain specialist advice to ensure the appropriate reason for divorce is applied for. This can help to keep matters amicable between you and your spouse and will be more cost efficient in the long run – this is because it can help avoid ‘cross petitions’. Examples of this are where both spouses decide they want to base petitions on each other’s behaviour or one party decides to defend the divorce because of what is being said about them. If cross petitioning happens, there could be protracted correspondence and parties may have to attend court, which can be stressful and costly for both parties involved.
Ensuring you get the right advice at the outset can assist you in the longer term both emotionally and financially. It is also important that you are aware of your position in relation to the financial matters arising from the marriage and whether or not it is advisable to apply for your decree absolute as soon as you are able to do so, or whether you should wait. There may be benefits such as pension rights which can be lost upon ending the marriage before resolving the financial matters – specialist advice can give you all your options so you are fully informed.