April 7, 2022

New Divorce Law – Simpler and Hopefully less Acrimonious

Divorce law has undergone fundamental reshaping with the new no fault divorce having replaced the old system yesterday.  This is the biggest change divorce law has seen in 50 years.

Under the old law, the ‘petitioner’ had to rely on one of five facts to show that the marriage had broken down irretrievably.  Three of these facts required that the couple had been separated for two years or more.  However, couples will often want a quick divorce so they can get financial arrangements in place as soon as possible.  The only way to do so was by apportioning blame with reliance on either the fact of the other’s adultery or unreasonable behaviour.  In the case of unreasonable behaviour, detailed allegations had to be made.

Many professionals believed for some time that the old law, which originally came into force in the 1970s, was outdated and served only to stir up conflict between the parties, sometimes where there was none.  It is not uncommon for parties to want to divorce simply because they have drifted apart over the years.  The last thing they need is for one of them to have to produce a list of the other party’s behaviour which they find unreasonable in order to persuade a Judge that their marriage is over.

What are the key changes under the new law?

  • Under the new simplified system, a couple needs only to declare that the marriage has broken down irretrievably as opposed to having to apportion blame.
  • An application for divorce can be made jointly or by a sole applicant.
  • The option of contesting the divorce has been removed altogether.
  • The terminology has changed so Decree Nisi becomes a Conditional Order, Decree Absolute becomes a Final Order and the Petitioner becomes the Applicant.
  • There is now a period of reflection lasting a minimum of 20 weeks before the Conditional Order can be made.  This is to provide the parties with time to consider their decision.

It is important for divorcing couples to deal with financial arrangements at the same time as dealing with the divorce. It will remain the case that without a Financial Order, duly approved and sealed by the Court, a couple’s potential claims against each other for income, capital and pension sharing will remain open.   This will leave the parties in a vulnerable position, at risk of future litigation, not only in life but also on death since the surviving former spouse could potentially make a claim against the deceased former spouse’s estate.

How can a lawyer help to resolve the financial arrangements?

  • A lawyer can only represent one of the parties.  The other party can choose if they want to be represented by another lawyer or represent themselves.
  • Assist the parties in reaching a financial agreement in a non-confrontational and conciliatory manner.
  • If agreement cannot be reached between the parties, advising as to what other options are available such as mediation, collaborative law, arbitration and financial remedy proceedings and assisting in deciding which method might be the most suitable in the circumstances.  Representation throughout whichever method the party chooses.
  • Prepare a Financial Consent Order which will record the parties’ financial agreement reached.  Once approved by the court, this will become a fully binding and enforceable agreement, dismissing any other potential claims the parties would otherwise have against one another, protecting them both from the risk of future litigation.

At Scott Bailey, our team of family lawyers is on hand to advise you in connection with any family law matters.  Contact Sarah Unsworth, Ann Herd or Olivia Dyer to arrange a fixed fee initial consultation. 

Scott Bailey LLP 63 High Street, Lymington Hampshire SO41 9ZT Tel: 01590 676933