Should I wait for a divorce?

The current divorce law in England and Wales relies on a ‘fault-based’ approach if separating couples wish to divorce in the first two years of separation. The petitioner must apply for a divorce on the ground that the marriage has irretrievably broken down due to either: 

  1. Adultery; or
  2. Unreasonable behaviour.

However, if the person petitioning for a divorce does not wish to use either of the above facts, they must wait until the parties to the marriage have been separated for at least 2 years and rely on one of the following facts:  

  1. Separation for at least two years with consent of both parties;
  2. Separation for at least five years (no consent needed);
  3. Desertion by the respondent for at least 2 years. 

This leaves separating couples with the difficult dilemma of either blaming one person for the breakdown of the relationship or staying married. 

No Fault Divorce

Family practitioners have been campaigning for many years to change this outdated divorce process so that married couples can separate in a less contentious and more amicable way. 

Therefore, the new ‘no fault’ based divorce law which will be brought in by the Divorce, Dissolution and Separation Act 2020 next April is a welcomed change as it will allow couples to divorce without having to find fault with one another creating far more harmonious circumstances, which is better for the relationship and the family, particularly if children are involved. The new law means that separating couples will have to simply state that the marriage has irretrievably broken down without having to cite any blame. 

However, due to this new ‘no fault’ based approach, many couples are wondering whether it would be better for them to wait until the new law comes into force before starting divorce proceedings so that they do not have to place blame on their spouse. 

Below I look at some of the key advantages and disadvantages of waiting for the no fault divorce. 

Legal Costs

Whilst the cost of getting divorced is not set to change following the new divorce law, there may be other cost benefits of waiting for the new no fault divorce. 

Where a fault based fact is used for the divorce, this can sometimes lead to a more acrimonious separation as the respondent may feel aggrieved by the allegations included within the petition. This could lead to more difficulties when it comes to agreeing on the financial split and also sorting out arrangements for the children, due to increased hostility between the parties and thus increase legal costs incurred in dealing with contentious issues. 

Having a legally binding agreement

If you choose to wait before issuing divorce proceedings, any financial agreements made between you and your spouse are not legally binding because you cannot obtain a court order without the divorce having commenced and the petitioner obtaining the decree nisi. So, even if you and your spouse are agreed and happy with the financial arrangements this does not mean they are set in stone as opinions may change depending on circumstances at the time the divorce proceedings begin.  Therefore, in order to guarantee that any financial agreements are legally binding and cannot be revisited, it is advisable to start divorce proceedings without delay to secure a court order. 

Timing

The COVID-19 pandemic has had huge impact on all our lives and has led to delays across many sectors including divorce proceedings. Therefore, considering the delays already present, if parties choose to wait until the no fault divorce becomes law, they could find themselves in an even larger backlog of divorce cases waiting to be processed by the court. 

Acrimony

In some cases there may be a concern that starting the divorce proceedings based upon either party’s behaviour will only inflame the relationship between the parties and could lead to further bad behaviour. Whilst in some cases it may be advisable to proceed with the divorce and highlight such behaviour in others it may be that the individual starting the divorce wants to avoid that relationship becoming any more toxic particularly if children are involved and therefore they would prefer to wait for the no fault divorce to become law. 

Overall, it is the individual’s decision when they begin divorce proceedings and the above does not represent legal advice but merely points to help you think about what may be best for you. If you would like further guidance or legal advice our talented family law team would be happy to help you. You can contact us on 0113 322 9222 or email enquiries@consilialegal.co.uk.

Find out more about divorce law with Consilia Legal.

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