Divorce solicitors have campaigned for years for divorce law reform and it is finally happening. Whilst that is great news, in this article we take a look at what the reforms mean and whether you should wait to apply for a no-fault divorce and the potential benefits of not waiting when you can apply for a divorce now.
In this article, divorce and financial settlement solicitor, Robin Charrot answers your questions on your divorce options and the importance of getting the timing of your divorce right.
Your divorce questions answered on:
- What is no-fault divorce?
- When is divorce law changing?
- Can you get a no-fault divorce now?
- Do the ground for your divorce matter?
- Should you wait for divorce law change or divorce now?
What is no-fault divorce?
No-fault divorce is when you get a divorce without having to blame your husband or wife for the marriage breakdown in the divorce petition.
It is possible to get a no-fault divorce now, but no-fault divorce will become the norm when the law changes.
Even if you do not have the grounds to get a no-fault divorce now, you may be able to divorce amicably and quickly without having to wait for the no-fault divorce law to come into force.
The timing of your divorce can have long term financial and other implications for you, so it is best to talk to a divorce solicitor about when to start divorce proceedings.
When is divorce law changing?
The Divorce, Dissolution and Separation Act 2020 reforms divorce law in England and Wales with the introduction of no-fault divorce.
Couples will be able to apply for a no-fault divorce under the new law from the 6th April 2022.
However, if you don’t want to wait for the change in divorce law, you may be able to get a no-fault divorce now or get divorced amicably.
Can you get a no-fault divorce now?
Under current divorce law you have to file a petition for divorce that says your marriage has irretrievably broken down and cite one of five facts. Two of those facts can give you a no-fault divorce now. They are:
- Separation for two years or more and your husband or wife agrees to a divorce or
- Separation for five years or more, in which case you don’t need your husband or wife’s consent to the divorce.
There are three points to make about divorce based on separation:
- You do not need to have lived in a separate house to your husband or wife for the two or five years provided that you have lived separate and apart in the same household. A divorce solicitor can explain what this means and if this fits with your circumstances.
- Even if you have not been separated for long enough to get a divorce using the current divorce law on separation, you can still reach an agreement about your future divorce by signing a separation agreement and parenting plan. This will make things easier for you when you do start divorce. proceedings and you can start to implement your financial settlement now. For example, by arranging for the family home to go on the market for sale or starting the ball rolling with getting the house and mortgage transferred from joint names to one name.
- If you have not been separated for long enough to get a divorce using the current law on separation and divorce, you can probably still get an amicable divorce without having to go to court to get your decree absolute.
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Do the grounds for your divorce matter?
If you want to get divorced now, and you have not been separated from your husband or wife for at least two years, you can still start divorce proceedings now if your marriage has irretrievably broken down and your husband or wife has:
- Committed adultery or
- Behaved unreasonably or
- Deserted you.
There are six points to make about ‘fault divorce’:
- You do not need to name a third party in the divorce proceedings based on adultery.
- A divorce on one of these three reasons takes the same time for the divorce court to process the divorce as a divorce based on separation.
- Divorce solicitors can normally agree the allegations of unreasonable behaviour so they don’t cause upset to your husband or wife.
- You will not have to go to a court hearing for your divorce if your husband or wife agrees to the divorce.
- The fact that you have started divorce proceedings using adultery or unreasonable behaviour or desertion will not affect the financial settlement or the children arrangements.
- There may be reasons why it is best, in your circumstances, to get divorced now rather than wait. A divorce solicitor can explore why it may be better for you to get divorced straight away rather than wait until after the 6 April 2022.
Should you wait for divorce law change or divorce now?
There are many reasons why it may be in your best interests to start divorce proceedings now rather than wait. Every family situation is different so speak to a divorce solicitor about what is best for you in your individual circumstances.
Some reasons why it may be best to start divorce proceedings now are:
- Emotionally you can’t wait and you want to get on with your divorce.
- Your husband or wife doesn’t mind unreasonable behaviour or adultery divorce proceedings being started as they know the divorce petition is a ‘means to an end’ and they can’t see a reason to wait.
- Your children feel as if they are in limbo or think that you and your spouse will get back together as you are not getting divorced straight away.
- Your husband or wife won’t agree to the sale of the family home or other assets and you can only apply for a financial court order if there is a divorce petition filed at court.
- You want to remarry as soon as possible because you are expecting a child with your new partner or your new partner is in poor health.
- The tax consequences of divorce and financial settlements mean that in your financial circumstances it is better not to wait until the new tax year.
- You are in an abusive relationship.
- You are in need of urgent financial support and spousal maintenance as your husband or wife won’t pay towards the mortgage or household bills.
- You fear child abduction or have other urgent children law related worries.
- You think that you husband or wife will sell or transfer assets to their family or friends to try to reduce your financial settlement by continuing to hide assets or syphon money.
- You are concerned that your husband or wife could start divorce proceedings in another country and the financial settlement that you would receive from a court in the other country would not be fair or meet your needs. There are special considerations if your family has overseas connections and you need international divorce
- You are worried about the consequences of delay as your husband or wife is running up debts and you fear they may be made the subject of a bankruptcy petition.
- You husband or wife is due to get their cash free lump sum pension payment and you are concerned that they will not preserve the money so you won’t get a fair financial settlement. There are special considerations for divorce in retirement.
There are many other reasons why you may want to divorce now. Our divorce solicitors will talk to you about your family and financial circumstances and work out which approach is best for you.