Divorce can be a long enough road as it is so why mention waiting for longer?
As many are starting to realise, divorce laws in England and Wales were drastically reformed in 2020.
These new laws sweep away the existing requirements in most cases to allege or even have to prove the other party to the marriage was at fault to gain a divorce. It will be enough to say that the marriage has broken down irretrievably.
There had been plenty of criticism of the damage that was done to parties’ ongoing relationships by allegations of adultery, desertion or unreasonable behaviour. Instead of helping parties deal with the inevitable, divorce was seen as unnecessarily causing conflict between parties when the decision to divorce was painful enough as it is.
It has certainly been the case that many lawyers have had clients having to ‘flesh out’ allegations of conduct with barely justifiable hyperbole just to satisfy the exiting antiquated laws.
The new law has been made by an Act of Parliament but the problem is it is not yet in force. It is intended to be brought in to effect by Autumn 2021. There will be a need to redesign court forms and write out new court rules for the processes, which will all take a while.
How does this affect you?
If you find yourself in the position where you could divorce now under the existing laws, you have a decision to make as to whether to proceed now or wait for the changes to come in.
The legal consequences of any decision need to be considered very carefully on proper advice from a solicitor but in general, waiting may be right for you;
· If you have decided to petition on the basis of the only current no fault grounds – 2- or 5-years’ separation and the period of time will only elapse around the same time or after the new laws take effect. (i.e., there is no point waiting longer than you need to)
· You have waited 2 years but your spouse does not consent (consent is currently required for petitions on 2 years separation but not 5 years) and you decide you do not want to make allegations of unreasonable behaviour.
· You may feel you would be dredging up allegations of conduct you would rather leave in the past as personal matters rather than being set out in legal documents (albeit private).
Some reasons why waiting may not be right for you;
· There is currently no fixed date for the laws to come in to force – there can be delays. Family laws have been made in the past and never implemented. Large parts of the Family Law Act 1996 are still on the shelf for example.
· You have financial issues to be dealt with – these can often only properly be dealt with once a divorce petition has been issued and are often needed to be addressed urgently, for example to obtain a freezing order or interim maintenance.
· Your or your spouse have more than one country that divorce can be issued in – it is often essential here to act fast and make sure that your case is dealt with in the right country for you.
Although you need to be alert to the coming changes, you also need to ensure that the decisions you make are based on properly tailored advice as to the facts of your case.
One of our qualified solicitors in our family law department will be ready willing and able to help you make that decision.