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Should I wait for no-fault divorce before starting divorce proceedings?

What is the Divorce, Dissolution and Separation Act?

On 6 April 2022, the Divorce, Dissolution and Separation Act will be introduced and divorcing couples in England and Wales will be able to divorce on a ‘no fault’ basis.

At present, in order to obtain a divorce, you must ‘petition’ on the basis of one of the following grounds:

  1. Adultery;
  2. Behaviour;
  3. Two years’ separation with the consent of the other party;
  4. Five years’ separation; or
  5. Desertion

Once the law is changed, neither party will need to state one of the above ‘facts’ and it will be sufficient to provide a statement to say that the marriage has broken down irretrievably.

What are the benefits of a no-fault divorce?

So is it worth waiting until April to begin your divorce? In some cases, it may be that this is worthwhile. No fault divorce will be very positive for couples who wish to end their relationship in a constructive and less acrimonious way.

Using the current system, if one party wants to avoid blaming the other, they have to wait a long time. The new system will remove the need for blame completely and it will be enough for one party to state that they feel the marriage has broken down.

In addition, the no fault system will remove the possibility of a defence to the divorce. The importance of this point was stressed by the Supreme Court in the case of Owens v Owens. In this case, the Supreme Court had to dismiss an appeal by Mrs Owens, which meant that Mrs Owens had to remain married to Mr Owens. The Supreme Court judges stated that they did not take ‘satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being’. This type of case, where one party is obligated to remain married to the other, will hopefully be a thing of the past.

It is important to note that, whilst it is unlikely to be a quicker process, it is hoped that the no fault process allows couples to commence proceedings on more amicable level.  This could mean that, when the finances or child arrangements are considered, the no fault divorce will be more harmonious and therefore less expensive.  Costs of the divorce process itself will likely be similar to an uncontested divorce now, and although rare, the very high costs of defended divorces will be obsolete.

What are the disadvantages of a no-fault divorce

Despite the above, it is important to consider why it may not be best to wait until April to move forward with your divorce.

If you do choose to wait to commence divorce proceedings, you would also have to delay applying to the court to approve a financial consent order if an agreement is reached. You must commence divorce proceedings prior to applying to the court in relation to financial matters (whether it is contested or by consent).  There may be other options, but it will not be possible to have a final financial order without divorce proceedings.

In addition, it is vital that you consider other points which may be impacted by your decision to delay matters, including, for example, your own mental health, the welfare of your children and financial or tax complications which may occur as a result of the delay.

If you are considering divorce and you are unsure as to whether to wait for the advent of No Fault Divorce in April please contact Rayden Solicitors to discuss the way forward in your specific circumstances.

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