The new ‘no-fault’ divorce – should you wait to get the ball rolling…?

You may have heard that the government’s Divorce, Dissolution and Separation Act 2020, due to come into force in April 2022, will reform the divorce process to remove the concept of fault. The new legislation means that if both parties agree to a divorce, there won’t be a requirement for one party to blame the other for the breakdown of the marriage. It is intended to reduce conflict between parties, allowing couples to focus on the more important issues, such as their children, finances, and property. This change will also apply to civil partnership dissolution.

However, there are ways of starting divorce proceedings before the new legislation comes into effect in April 2022, without it being onerous on blame, so don’t fear that because the available grounds for divorce don’t currently include the label ‘no fault’, it means that you must go in with all guns blazing to get the divorce started.

Charlotte Gower, a member of our Family Law Team in Warwick, explains “Whilst the marriage must have irretrievably broken down in order for divorce proceedings to be started, there are currently five legally recognised reasons for the breakdown:

a. A party to the marriage has committed adultery and the other finds it intolerable to continue living together
b. A party has behaved in such a way that it would be unreasonable to expect the other to continue to live with the other spouse (“unreasonable behaviour”)
c. A party has deserted the other for a continuous period of two years or more.
d. The parties have lived separately for two years or more and the other spouse agrees to the proposed divorce
e. The parties have lived separately for five years or more, in which eventuality consent is not required

It is a common misconception that the Court will always take into account the reason for divorce, or the conduct of the parties, in making a financial Order. The basis for the divorce is not normally relevant to how financial matters are resolved. “Conduct”, as it is known, will only be considered if the Court considers it would be unfair to disregard it. So, even if the Petitioner uses, for example, ‘unreasonable behaviour’ for the ground for divorce, this does not usually have a bearing on the financial side of things.

If you want to separate or you are already separated and you want to sort out your financial separation, then you do need to have the divorce proceedings started in order to have your financial separation put into a legally binding Court Order and approved by the Court to formally finalise it. If you don’t get the agreement finalised in a Court Order, then you are leaving your claims against each other open.

We can draft the financial Court Order, called a ‘Consent Order’ for you after reviewing your wants and needs and potentially negotiating with the other party. This can then be filed with Court where a Judge will review and approve, so long as they believe it to be fair. You can do all of this by agreement without actually having to step foot inside a Court itself.

There are ways that the divorce can be achieved amicably without delay, and this means that you can go ahead and get your finances sorted and finalised sooner rather than later. We would recommend getting advice from one of our experienced Family Law Solicitors, where you will be able to discuss your divorce and financial separation and getting it all laid out in a Court Order, letting us guide you through the process and making it as stress-free as possible.”

For further information, please contact Charlotte Gower either by calling the Warwick Office or by emailing charlotte.gower@wadsworthslaw.co.uk.