No fault divorce was due to come into effect in England and Wales this autumn but the Government has announced that the officially named Divorce, Dissolution and Separation Act 2020 will now not come into force until 6th April 2022. The same changes will be made to the law governing the dissolution of a civil partnership at the same time.
The delay is apparently to build the necessary amendments to court rules and rectify the new online digital divorce service which has been prone to bugs.
What is no fault divorce?
Under the current legislation, couples wishing to divorce before they have been separated for two years or more must cite either the other party’s unreasonable behaviour or their adultery (which must be admitted). It is not enough to say that there are irreconcilable differences or that both parties agree to a divorce. The Petitioner has to allege fault and blame.
In practice, solicitors are aware of this and explain to clients that this is merely a means to an ends; keeping allegations of “unreasonable behaviour” relied upon to a minimum and recommending that parties do not name the person that their partner has committed adultery with, in order to reduce animosity between the parties.
Under the new legislation divorcing couples will simply be able to agree to a divorce, without assigning blame or fault. It is expected that the bill will be passed and that “no fault” divorce will become the way forward for separating couples.
What will no fault divorce do?
Justice secretary Robert Buckland has said of the new legislation “by sparing individuals the need to play the blame game, we are stripping out the needless antagonism this creates so families can better move on with their lives.”
It is hoped that by introducing no fault divorce that the divorce process will become more straightforward. The new legislation will also remove the possibility of contesting a divorce.
It should be noted that under the new legislation the Decree Absolute (the final piece of paper in the divorce) cannot be granted until at least 6 months have passed from the start of proceedings. It is currently possible to conclude a divorce quicker than that where all concerned, including the Court office, process the paperwork at all stages promptly, but in practice divorces normally take longer than 6 months, particularly given that it is normally standard advice to ensure that financial matters are resolved prior to applying for the Decree Absolute.
What should you do?
The government has recently introduced online divorce to streamline the process of people obtaining a divorce themselves, without the need to instruct solicitors. If you are thinking of doing this, whether now or when no fault divorce comes in, we recommend that you still come and speak to a solicitor in relation to financial matters before getting the Decree Absolute. This is because, upon pronouncement or the Decree Absolute, you may lose out on state benefits, pension benefits, and any matrimonial restriction on the family home will cease.
If you do not resolve financial matters during the divorce process, by way of a legally binding order, then your claims against each other remain open for income, capital and pensions and either of you may apply to the Court in the future for a financial order. This means that if either of you win the lottery or receive an inheritance, the other may make try to make a claim over this. Or if either of you has a change in circumstances, you may find that the other feels differently about how the finances have been divided.
If you have any questions or wish to speak to a member of our Divorce & Family team about getting a divorce or any other aspect of family law, then please contact us on 0118 975 6622 (Lower Earley office) or 01491 570900 (Henley-on-Thames office).