For most couples, getting divorced is a sad and sometimes messy business, the last resort after the irretrievable breakdown of a marriage.
To add to the pain, many experts think the current divorce laws only make divorce more drawn out and acrimonious than it needs to be. As things stand, couples wanting to divorce without blame have to wait two years if both sides agree to the divorce and five years if one side refuses consent.
That’s a long time to wait, and for some the stress of waiting years to end a marriage that has clearly run its course is a cause of acrimony in itself. But if couples want to speed up their divorce, things get murkier still.
“At the moment, if couples don’t satisfy rules over length of separation and want to get divorced more quickly, one side has to prove the other is guilty of adultery, desertion or unreasonable behaviour,” says Dipal Patel, associate solicitor in family law at Irwin Mitchell. “That inevitably leads to more acrimonious proceedings.”
“Irretrievable breakdown” will be enough
It’s with a view to ending this divorce “blame game” that the Government has said it will introduce legislation for “no-fault” divorce as soon as parliamentary time becomes available. The new proceedings would replace the need to prove adultery, desertion or unreasonable behaviour with a simple statement confirming the irretrievable breakdown of the marriage.
“Removing the need for one side to blame the other should help to make divorces smoother, both for the divorcing couple and any children they may have,” says Dipal. “At the moment, somebody has to be blamed or the divorce can take years, a system which encourages a confrontational attitude.”
With the new law, a divorce may be granted after a six month period of reflection in cases where one or both parties claim irretrievable breakdown. That cuts the time it takes to get a divorce by at least 18 months in cases where no blame is attached.
The new law will also stop divorces being contested. That comes after the well-publicised Tini Owens case in 2018 in which the supreme court ruled that Owens could not divorce her husband until five years had elapsed, because he did not agree to the separation.
The ruling trapped Owens in an unhappy marriage and caused a public outcry, but the supreme court “reluctantly” decided that, as the law stood, an unhappy marriage was not grounds for quicker divorce when one partner refused to give consent. The court argued that it was up to parliament to change the law, and that is something parliament has now promised to do.
Finances still a potential sticking point
The “no-fault” laws will help to end the blame culture that surrounds divorce, but it won’t be a panacea for everyone. As Dipal explains, it is often not the divorce itself that leads to messy and acrimonious proceedings.
“When both parties agree to it the divorce is largely a paperwork exercise,” she says. “It is often the financial negotiations that delay the outcome, and that is a completely separate process. Clients are often surprised to learn that the reasons behind the marriage breaking down have no bearing on the financial settlement and how assets are divided. It doesn’t matter if adultery or unreasonable behaviour is involved – that is not something the court will take into account.”
Finances will remain a sticking point for many divorcing couples, so if you are looking to divorce, it is a good idea to keep on top of your financial records and make sure important documentation is present and up to date.
Experts at Irwin Mitchell solicitors point out that, despite the first change to divorce laws in half a century, the law will continue to offer no guidance to thousands of couples when their relationships break down. There is no law that protects unmarried cohabiting couples or creates a structure for a fair and reasonable division of their assets, despite cohabiting being the fastest growing household type in the UK.
Ros Bever, head of Irwin Mitchell’s divorce and family law team, says: “No-fault divorce is a move which, while welcome, is not something which is going to hugely benefit those facing financial hardship such as cohabitants, and that is where the focus should be now.”
Still, the new law has been broadly welcomed by family lawyers, who believe “no-fault” divorces are long overdue.
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