Today we continue our series of legal advice articles called Ask the Solicitor, in partnership with Altrincham law firm Hill and Company. You can read the previous articles here.
Once again this week, it’s family solicitor Dan Knox.
Q
Dear Dan,
A friend told me that there is a new divorce law. I have decided to seek a divorce from my husband and hope that this will make the process quicker. When I previously looked into it was a bit daunting and when I read up on it I didn’t really understand the process.
One thing that is holding me back is that I don’t really want to point the finger of blame at my husband for causing the divorce, we have just fallen out of love really, as I am sure many can relate to.
I am also worried about the cost of the divorce; I wonder if the new law has made the process any cheaper? Finally, is there anything I can do if my husband won’t agree to the divorce and sticks his heals in?
Thanks
Katie
A
Hello Katie
Thank you for getting touch.
On 6th April 2022, The Divorce, Dissolution and Separation Act 2020 came into effect.
This new legislation allows a person to seek a divorce without having to cite a specific reason or ground for the breakdown of your marriage. The legislation will also mean that a divorce can no longer be defended or contested by the other person if they do not agree.
Will the new divorce laws make obtaining a divorce quicker?
It is hoped the changes will result in a more straightforward and amicable process, but this does not necessarily equate to a quicker divorce.
After the application has been issued, a minimum 20-week “reflection period” has been introduced which will allow couples time to explore possible reconciliation and to get their financial affairs in order.
Once the minimum reflection period has elapsed and the court has awarded the Conditional Order (the ‘middle stage’ of the divorce), there is then a further minimum period of six weeks before the parties can obtain the Final Order and the marriage be formally dissolved.
So the timeframe to obtain a divorce under the new rules is a minimum of around six months.
Therefore, whilst the new legislation changes the nature of the ‘blame game’ that used to exist, it does not necessarily make the process any faster.
Do I still need to blame my husband for our marriage not working?
Previously, spouses in England and Wales were only eligible to divorce on proving a marriage had broken down irretrievably using one of five different facts:
- Adultery
- Unreasonable Behaviour
- Desertion (although rarely used in practice)
- 2-year separation (with their spouse’s consent)
- 5-year separation (no consent required)
A person seeking a divorce will no longer have to prove one of the five facts. Instead, it will be presumed that if a person seeks a divorce it should be granted, rendering all divorces blame-free by default.
Lots of couples do not feel it necessary to point the finger of blame at each other when it comes to the reasons why a relationship has ended and we feel that it is a positive step that our laws have now been amended to reflect this progressive attitude.
The change to the law acknowledges that often all parties play a role in a marriage coming to an end.
Is anything else changing?
The legal terminology used within a divorce is also being simplified. You will no longer require a GCSE in Latin to understand which stage in the divorce process your application is at.
The interim stage of the divorce (previously referred to as decree nisi) will now be referred to as the ‘Conditional Order’ and the final order of the Court which formally dissolves the marriage (previously referred to as decree absolute) will now simply be called the “Final Order”.
The person making the application will now be referred to as the “applicant” or “applicants” (if it is a joint application) (where previously they were called the Petitioner) with the divorce petition itself now being referred to as the “application” to match.
It will also now be possible for couples to make a joint application if they wish – previously one person had to make the application and the other person would automatically become the Respondent.
Why is the law changing?
The requirement to assign blame can make agreement on key issues difficult and we found could increase tensions between parties unnecessarily.
It is important in our view that parties focus on the more pertinent issues to be agreed, like how to promote the interests of the children and the financial division of assets. It is hoped the change to the law will make the overarching divorce process smoother for all by making the process less acrimonious and to help parties focus on reaching resolution for the good of all the family.
What happens if my husband doesn’t agree with the divorce?
The new legislation removes the ability to defend a divorce. Therefore, if you issue a petition under the new legislation, and do not have a change of heart, then the marriage will be brought to an end.
A divorce can still be challenged should there be a question as to the validity of the marriage in the first place but reading between the lines, it does not appear that this applies to your circumstances.
If I make the application will I have to pay?
The court fee for issuing a divorce remains at £593. Parties making a joint application can decide between themselves how to split such fees.
You can make an application to try and recover your costs from your husband, although this is discouraged by the Courts as they wish for parties to engage in dialogue and try and reach an agreement as to how the cost of the divorce will be covered.
I think that it is important to remember that a divorce dissolves a marriage, it is a big step. However, nothing in the divorce process deals automatically with either arrangements for children or the division of matrimonial financial matters.
It is important to remember that while the procedure to obtain a divorce may have changed, the legal and practical issues around, often the most important aspects of a separation (the children and financial matters) remain the same.
If you are seeking a divorce, it is still incredibly important to seek professional advice to ensure that matters are properly handled. If you need advice about your divorce, or any other legal issue, you can contact Dan or one of our other trusted legal advisors here at Hill and Company by telephone on 0161 928 3201.
