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Should I start divorce proceedings now?

View profile for Louise Rhys-Thomas
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Here at Hughes Paddison, we have been closely following the Divorce, Dissolution and Separation Act since its announcement in 2018, through Parliament to receiving Royal Assent on 26th June 2020. Its introduction will see some of the most ground-breaking changes in divorce law in the last 50 years.

The new law will mean that spouses will be able to apply for a divorce, on the basis that the marriage has broken down irretrievably, without having to blame the other person. They will have to wait a minimum of 26 weeks from the date of the application before the divorce can be made final. This includes a 20-week period between making the application and the Conditional Order of Divorce (currently called the Decree Nisi) being pronounced - these 20 weeks are seen almost as a ‘cooling off’ period or an opportunity to try and reconcile. There will also be the option for separating spouses to make a joint application for divorce, further encouraging an amicable end to their marriage.

Currently, a divorcing couple must prove that their marriage has irretrievably broken down by relying on one of five facts. These facts are:

  • Adultery;
  • The behaviour of the other party;
  • Desertion;
  • 2 years’ separation (if the other spouse consents to the divorce); or
  • 5 years’ separation (when consent is not required).

The new law does not intend to make it ‘easy’ to get a divorce but removes the need to blame the other person or to ‘prove’ that the marriage has irretrievably broken down based on one of the five facts – a statement by one or both of the parties confirming that the marriage has irretrievably broken down will be sufficient to allow the divorce to proceed. It is hoped that the removal of this unnecessary conflict in having to blame the other party will help foster an amicable approach to the other issues arising out of the end of the marriage. Starting the process with one party blaming the other for the breakdown of the marriage can often not assist in trying to resolve the financial matters and agree arrangements for the children.

Whilst the Act received Royal Assent in June 2020, to allow time for careful implementation, a commencement date of Autumn 2021 has been aimed for. At the time of writing this article, there has been no specific date announced by the Government for the new laws to come into effect, however, it is generally anticipated that it will be some time between September and November 2021.

Many separating couples are therefore wondering whether now is the right time to start divorce proceedings (under the current law), or whether they should wait until the new law comes into force later this year. The answer will very much depend upon your individual circumstances – if you have recently separated, particularly if you do not want to ‘blame’ the other person, you may wish to consider waiting for the new application process to commence to help reduce acrimony. If, on the other hand, you have already been separated for over two years and your spouse consents to the divorce, it may be quicker to start the divorce proceedings now rather than waiting. It will also be important to consider the impact of which route you choose to go down on the finances as the Court will not be able to make a final order in respect of the finances until the divorce reaches the Decree Nisi/Conditional Order of Divorce stage.

Either way, it is important to take legal advice in the context of your own personal circumstances from an experienced family solicitor. The breakdown of a marriage involves not only the divorce proceedings but resolving the finances and arrangements for the children. Our Family Team have a wealth of knowledge and experience in taking a holistic approach to advising clients, considering the big picture as well as the important detail.

If you would like to discuss issuing divorce proceedings, or any other aspect of family/relationship breakdown, please feel free to contact a member of our Family Law Department on 01242 574244 and we will be happy to meet you and discuss your situation.

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