I want a divorce – should I wait until the no-fault system comes in?

I want a divorce – should I wait until the no-fault system comes in?

Lauren Preedy - Senior Associate Solicitor - Head of Divorce and Relationships Team

Lauren Preedy – Senior Associate Solicitor – Head of Divorce and Relationships Team

Anyone presently contemplating divorce is in the unusual position of having two quite different divorce systems to choose from: the present system, which largely places the blame for the breakdown of the marriage upon the other party, and a no-fault system, which does not attribute blame for the marriage breakdown.

The only catch is that, as we reported here back in June, the no-fault system, which replaces the present system, will not come into effect until the 6th of April next year.

You should arrange to have an initial consultation with us as soon as possible as there may be a good reason to start the divorce sooner rather than later. This may be in relation to financial matters (including tax, pension or jurisdiction issues), health matters or if one person wanted to re-marry. Having the information means you can make an informed decision.

 

Two different systems

Before we consider the possible pros and cons of waiting for no-fault divorce, we need to look at the differences (and indeed similarities) between the present divorce system and the no-fault system.

One similarity between the two systems is that there is only one ground for divorce: that the marriage has broken down irretrievably.

However, the way in which irretrievable breakdown is proven is quite different in the two systems.

Under the current system you must prove irretrievable breakdown by showing one of five things: that the other party has committed adultery, that the other party has behaved unreasonably, that the other party has deserted you for two years, that you have been separated for two years and the other party consents to the divorce, or that you have been separated for five years.I want a divorce

It will be noted in particular that, unless you have been separated for two years, you must effectively blame the other party for the breakdown of the marriage. And the other party always has the opportunity to defend the divorce (although defended divorces are quite rare).

A divorce under the present system can take as little as three months, but will often take longer, especially if there are financial arrangements to be sorted out before the divorce is finalised. If there are financial matters to resolve then these matters could take up to, or more than a year, and you may be advised not to legally end the marriage (decree absolute) as there may be adverse implications (including tax issues or issues if one person subsequently dies).

What about the new no-fault system? Well, this does not require any proof that the marriage has irretrievably broken down, other than a statement to that effect by one or both of the parties. If the statement is by just one party, the other party does not get an opportunity to defend the divorce.

A divorce under the new system will take a minimum of six months although, again, it may take longer if there are financial arrangements to be sorted out before the divorce is finalised.

 

Possible reasons to waitDivorce meeting

So why might you prefer to wait until the no-fault system comes in?

Perhaps the main reason is simply that you want to avoid the possible animosity between yourself and your spouse that might arise if you have to blame them for the breakdown of the marriage. And obviously if there is less animosity then it should be easier to agree arrangements regarding children and finances, thereby avoiding long and costly court proceedings.

Then there is the possibility that your spouse will defend any divorce proceedings commenced by you, particularly if you are alleging unreasonable behaviour. As mentioned above, a no-fault divorce cannot be defended.

Or perhaps you simply don’t want to attribute blame for the marriage breakdown.

In a similar vein, you may prefer that there be a ‘joint divorce’, whereby you file with the court a joint statement that the marriage has irretrievably broken down.

Possible reasons not to wait

On the other hand, there are reasons why you might prefer not to wait for no-fault divorce, including the following.

If you and your spouse will have been separated for two years before the 6th of April 2022, and if your spouse consents to the divorce, then there is little point in waiting, as you will already be able to get a divorce without having to attribute blame for the marriage breakdown.

Another reason not to wait is that, as also mentioned above, a divorce under the present system could be quicker, especially if there are no financial arrangements to argue about.

Lastly, it could be the case that that you will need to start the divorce as soon as possible, for example if you urgently need to apply to the court for financial support from your spouse.

So there are good reasons for waiting for no-fault divorce, and good reasons why you should not wait.  If you are in doubt as to whether you should wait, then you should seek the advice of an expert family lawyer.

We suggest that it is very important to take early advice on which system would be best for you. We can explain any implications to you and then you can decide about what would be best for you and your family.

You may also need to take advice from an accountant, especially if you and/or your spouse own more than one property. There may be tax implications you also need to consider.

 

Award winning

Previous Post Next Post