Divorce day 2022: Will the blame game end for UK couples?

By Louise Goldby

Louise has always had a strong interest in Family Law however it was whilst working at a firm in London back in 2016 that her passion really began to grow and she made the request to move into the firm’s Family Department, where she honed her skills and developed her knowledge of the subject. Louise has assisted in all areas of Family Law however she has a particular interest in Divorce and the associated implications, both in terms of the division of property and arrangements for children.

Every year, on the first working Monday of the year, family law firms see a significant spike in divorce enquiries, which has led to the day being dubbed ‘Divorce Day’.

It is believed that the festive period is responsible for this phenomenon, with couples having had time to slow down and reconsider their lives/relationships, gaining better clarity of what they want for their futures. For many couples in difficulty around this time, such a period of contemplation ends in divorce.

Divorce is always a painful and sad occurrence even where both parties are in agreement on the matter.  After all, parties entering into marriage usually do so in the belief that they will be partnered for life and that their feelings towards one another will never change.  The reality, however, is very often different, with current statistics showing that nearly 50% of marriages end in divorce!

The emotional and financial effects of a marriage ending are often significant and can take many years to resolve, particularly where there are disputes over finances and children, which is very often the case, even where the divorce itself is uncontested.  The impact upon any children of the family is also likely to be significant given that they are often exposed to animosity to some degree (whether or not intended by the divorcing parents).  This is often owing to parties having no alternative but to remain living under the same roof until matters are concluded.

It is therefore truly unfortunate that, historically in the UK, in the absence of a lengthy period of separation, parties have been unable to divorce without making allegations of blame for the marriage breakdown against their spouse.  Being left with no alternative has resulted in animosity even in circumstances where both parties want the divorce, adding further distress in an already stressful situation.

Divorce lawyers have, for years, campaigned for the procedure of dissolving a marriage to be simplified.  This year, there is a particular significance to ‘Divorce Day’, as 2022 is the year that the UK will enact its new law in respect of divorces, hopefully making the process somewhat less painful for those involved.

In the UK, the laws around divorce have not been changed since 1973, despite society evolving and changing significantly. The UK so far has been way behind other developed countries which have made the process of ending a marriage a lot less stressful for couples.  A renewed impetus for change in UK law resulted from a Supreme Court case, heard in 2018, in which a petitioner wife was refused a divorce on the basis that her petition did not meet the necessary requirements required by legislation.  Despite the Court of Appeal upholding this decision, the Judge commented that “the law which judges have to apply and the procedure which they have to follow are based on hypocrisy and a lack of intellectual honesty”.  The matter reached the Supreme Court and the decision was once again upheld however with the Judge concluding within his judgment that “Parliament may wish to consider whether to replace a law …”.  This case plainly highlighted the problems faced by Judges and the need for change.  On 6 April 2022, the Divorce, Dissolution and Separation Act 2020 will be enacted and some much-needed changes will come into force, the main benefit being that couples in the UK will be able to divorce without the requirement to assign blame.  The obvious benefit to this is that the process is highly likely to become much less acrimonious in many cases.  There will also be a number of other changes which are also intended to simplify the process.  On the other side of the coin, however, will we see an increase in divorces generally once the process becomes simpler?  Will parties be too hasty in their decisions to end their marriages given the lack of incentive for them to work at their marriages?  This remains to be seen.

What is ‘no fault’ divorce?

Whilst it will remain the case that the sole ground for divorce is the irretrievable breakdown of marriage, there will no longer be a requirement to use one or more facts to demonstrate this.

Currently, in order to demonstrate that a marriage has broken down irretrievably, the person seeking the divorce (the Petitioner) must show one of the following:

• Adultery and intolerability;
• Unreasonable behaviour;
• Desertion (at least 2 years);
• Separation of at least 2 years with both parties agreeing to divorce;
• Separation of at least 5 years, even where one party does not consent to the divorce.

It is clear from these criteria that there has been a gap in the law in that there has been no provision for couples who simply both wish to end their marriage in the absence of any wrongdoing.  In modern day society, the question is prevalent as to why a voluntary union could not be reversed in the same manner as it was entered into i.e. freely.  It will therefore be a relief to many, including practitioners, that these criteria will be abolished in April.

Rather, we will be looking at the following: –

• A single ground for termination of marriage – i.e. the irretrievable breakdown of marriage;
• the removal of any requirement to demonstrate that the marriage has indeed broken down.  The petitioning party will merely be able to satisfy this by declaring that this is the case;
• the application for divorce may be made jointly by both parties or by one party alone;
• there will be no option available to the other party (the Respondent) to contest the divorce;
• a minimum period of 20 weeks from the start of proceedings until the ‘Conditional Order’ (currently known as Decree Nisi) will be pronounced;
• the 6-week period between the ‘Conditional Order’ and ‘Final Order’ (currently Decree Absolute) will remain.

Overall, whilst the timeframe for the divorce process has not been significantly reduced, the removal of the requirement for blame and the opportunity to contest a divorce means that divorces, in isolation, will be less stressful and acrimonious.  This does not mean to say, of course, that this will be the case where there are finances and children matters to be dealt with however.

When can I apply for no fault divorce?

The no fault divorce will come into force on 6 April 2022. From this date, all applications will be decided based on the new rules.

As there are only few months before the new law comes into force, should you be contemplating divorce now, you may wish to consider the timing of your application.  Should you wish for a simpler process and should you have no immediate need to start the process, you would be well-advised to await the implementation of the changes.

For example, in the event your partner is likely to contest your wish to divorce or the use of one or more of the five facts would cause unnecessary animosity, it would certainly be advisable to await the changes.

If, on the other hand, your circumstances are such that you require a divorce as a matter of urgency, this may outweigh any benefit afforded by the changes and you may wish to start the process now.

What other issues should I consider when applying for a no-fault divorce?

Irrespective of whether your divorce application is carried out under the current laws (prior to 6 April 2022) or the new law (from 6 April 2022), the issues that need to be addressed upon termination of marriage will remain the same.

At some point during the divorce process or shortly afterwards, you will need to make sure that you have reached a formal agreement in respect of any marital assets/liabilities, as failure to do so can result in parties seeking to make financial claims against each other even years following divorce.  There are considerations to bear in mind when reaching a Financial Settlement and you would be advised to seek legal advice as to when such an agreement should become effective.  Parties are advised to seek legal advice in any event before entering into legally binding agreements.  Furthermore, if there are children of the marriage, ensuring that proper child arrangements are in place is a must.  Whether or not a formal Court Order is necessary will depend upon the individual circumstances and the ability of the parties to adhere to any informal agreement between them, as well as any risk of harm to the children.

It is always prudent to speak to a Family Solicitor before embarking on the divorce process. It is not uncommon that one or other of the parties will renege on any prior agreement reached and therefore parties should expect a few hurdles along the way.  Obtaining legal advice can help to keep such issues to a minimum by highlighting unforeseen potential issues before they arise and enabling parties to be ahead of the game, so to speak.  Having this insight and being prepared can eliminate much of the stress associated with divorce, not to mention the benefit the reassurance alone will afford.  Many people feel that, whilst in the midst of a highly emotional event in their lives, they simply cannot deal with the process alone.  Providing this assurance is one of the many skills which a Family Solicitor will possess and, it is our job to take the reins when parties may feel they cannot.

For advice on divorce, dissolution or other family related matters please get in touch with our experienced divorce lawyers.

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