The Government recently announced that the new so-called “no fault divorce law” will be brought into force in April 2022.
Although the law was incorporated in the Divorce, Dissolution and Separation Act which was passed through Parliament in 2020, there has been considerable delay in its introduction whilst the appropriate IT systems have been established and tested. Hopefully, by April 2022, the technology will be available so that it can be used without problems for court offices, solicitors and the public.
The coming into force of the Act will bring to an end the campaign for this law which has been running for many years. The thinking behind the change in the law has been that if couples do not have to allege ‘blame’ to obtain a divorce, then it is likely that a calmer atmosphere will prevail between the parties which will help the resolution of the ancillary issues, such as the arrangements for children and money. It remains to be seen whether those issues will themselves generate the same level of animosity that sometimes occurred over the divorce proceedings under the old law.
This is, of course, very much an individual decision. Where, for example, parties have already separated (but not for the minimum of two years as is required for a divorce under the present law), then there is no choice. Either the two year separation period has to expire before April 2022 or the parties can wait until April 2022 when, under the new law, there is no minimum period of separation (except that the proceedings cannot begin until one year has elapsed since the marriage).
There are some circumstances, however, when an immediate issue of a divorce petition under the current law (i.e. before April 2022) will be advisable. Such a case could be when one party has behaved very badly and also threatens to dissipate assets or remove them out of the country. In that situation, the ‘innocent’ party may well be advised to apply to the court for an injunction to prevent the removal of assets . To take that application, a divorce petition, under the present law, has to be issued.
Under the law relating to the settlement of financial matters following divorce, there are a number of factors that the court is obliged to take into account before making a final decision. One such factor is indeed “the conduct of the parties”.
However, over the years, the way in which the courts have interpreted that part of the law is that, in deciding financial matters, the ‘conduct’ complained of must be relevant to the finances of the parties or otherwise so serious that it would be entirely wrong to ignore it. By way of example, where it is found that one party has deceived the other party about their financial position and been using money for ‘non-matrimonial’ purposes, e.g high stakes gambling or remortgaging the matrimonial home without the knowledge of the other spouse, perhaps by forging signatures, then the court is almost certain to adjust its decision to try to ensure that the innocent party receives an amount equivalent to the amounts wasted by the reckless spouse. Of course, in many cases that is not possible because there may be insufficient money available. The court will, however, always do the best it can to readjust the finances in favour of the innocent spouse.
Although conduct will no longer be an issue in obtaining a divorce, bad behaviour can often be relevant in deciding the arrangements which best suit the needs of the children.
An obvious example is where it is alleged that a spouse has physically abused one or more of the children. In deciding the time (if any) which the children should spend with the allegedly ‘guilty’ spouse, it would be entirely inappropriate for the alleged conduct to be ignored. In such cases, even under the new ‘no fault’ law, a detailed investigation of the conduct would have to be held.
It is unlikely that it will be any quicker than at present to obtain a divorce. The law itself says that the divorce cannot be finalised until not less than 6 months have passed since the process was started in court.
There are certain costs over which neither the parties nor lawyers have any control. These are the fees which have to be paid to the courts to undertake the procedure.
As for legal fees, if there is less contention, then it is likely that the costs of the divorce itself will be reduced. It is unlikely however that there will be any significant change in the legal costs of dealing with ancillary issues, such as finances and the arrangements for the children.
If you would like information or some preliminary, confidential advice, please contact one of our experienced experts in our family team.
