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Divorce reform: should I wait to get divorced?

Posted on 7th January 2019

With the government currently consulting on plans to change the way couples divorce in England & Wales by proposing to bring in “no-fault divorces”, many people are asking if they should delay their divorce and wait for the new rules to come in?

It is an obvious question to ask, but the reality is that the prospect of “no-fault divorce” is still some way off. The government consultation does not close until 10 December and then they will need time to issue their response, which is unlikely to be until at least Spring 2019.

Thereafter, if the government decides to change the law, new legislation will need to be drafted and passed which, in the current Brexit frenzy, may not be a priority – if they decide to do it in the first place. At this stage, it is just a consultation.

My advice would be not to delay, and to find a lawyer who is a member of Resolution and so is committed to starting divorce with as little hostility as possible, even with a fault-based system.

I support the proposals to have the sole grounds for divorce as ‘irretrievable breakdown’, thereby eliminating the existing five facts for fault to be alleged and says that the concept of ‘fault’ is a throw-back to the concept of the ‘matrimonial offence’ predating the 19th century.

I have drafted a table detailing current divorce law alongside what it could look like in the future.

Divorce

NOWTHE FUTURE?
Currently, the first step to divorce is that one party must issue a petition which confirms that the marriage has irretrievably broken down.Replace this with a process of one party (or both) giving notice of irretrievable breakdown.
You must give evidence of one or more of five ‘facts’ to support that the marriage has broken down and cannot be repaired. These are:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Two years’ separation with consent
  • Five years’ separation otherwise
Irretrievable breakdown would be the only grounds for divorce.
In rare cases, the person receiving the divorce petition (the respondent) will defend the divorce petition (contest the divorce) or cross-petition with their own petition.The court would no longer need to check for evidence. However, it is not clear whether the divorce could still be defended or a cross petition lodged, both are up for review in the consultation – the government proposes divorce could not be defended.
Getting a divorce is a two-stage process:

  1. Firstly, a decree nisi is granted (after this is granted the court can make financial orders)
  2. At least six weeks + one day later, on application by the petitioner, the court grants a decree absolute, the final decree of divorce.
The two-stage decree process would remain, and the court would not be able to grant the first decree nisi if it was not satisfied that the marriage had irretrievably broken down.
The government proposes a minimum timeframe, after which decree absolute would be granted on application – and invites views on what the timeframe should be.
There is a bar on all divorce petitions in the first year of marriage.The bar on petitioning for divorce in the first year of marriage would remain in place.

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