Why is the law changing?
Under current law, married couples need to evidence the irretrievable breakdown of the marriage by relying on one of five ‘facts’ - unreasonable behaviour, adultery, desertion, two years separation with consent or five years separation. Because the minimum period of separation is two years (with consent) or more, couples must either rely on ‘unreasonable behaviour’ or ‘adultery' to evidence the irretrievable breakdown of the marriage. That can sometimes put couples in a difficult position and cause a strain on what may be a civil relationship.
In 2018 the Court of Appeal unanimously rejected an appeal by Mrs Owens (Owens v Owens 2018) to divorce her husband following their 39-year marriage, despite being ‘desperately unhappy’. Mrs Owens’ was forced to remain married to her husband until they had been separated for five years, when she no longer needed to obtain her husband’s consent. The unusual ruling of the Court of Appeal called for a new system to be introduced.
The Divorce, Dissolution and Separation Act 2020 introduced no-fault divorce to enable married couples to divorce without having to lay blame on one another. The new legislation comes into force on 6 April 2022 and should encourage a more constructive approach to divorce and separation.
What is no fault divorce?
From 6 April 2022 married couples will no longer need to prove the breakdown of the marriage by citing one of the above five facts. Couples will also be able to jointly file for divorce rather than it being solely down to one person to bring the case.
Under the current system, one person submits a divorce petition, and the respondent must confirm whether they contest the proceedings or not. The new procedure will take away this option to ensure we do not have any further situations like the above case.
The current wording of the divorce process is also considered archaic so that is being brought up to date and terminology such as ‘Decree Nisi’ will become the ‘conditional order’ and ‘Decree Absolute’ will become the ‘final order’.
How can I apply?
Between 1 April and 5 April, the online divorce portal will be offline. Any applications submitted on or before 5 April will be dealt with under the existing law. On 6 April people will be able to apply online via the www.gov.uk website.
If a sole application is made a copy of the application will be sent to the respondent. From the date of issue of the application the parties will need to have a ’20-week cooling off period’ before they are able to apply for the Conditional Order. From the date of the Conditional Order being made, the parties must then wait 6 weeks before applying for the Final Order to conclude the marriage.
How much will it cost?
The current cost of issuing divorce proceedings is £593. There is no information yet that this will change.
Will the Court consider how we separate our finances?
Splitting the finances is an unavoidable task if you want to provide security for yourself. Although much more streamlined and conciliatory, the divorce process itself will not resolve how you will go about splitting the matrimonial finances and/or protecting yourself once a Final Order has been granted.
If you cannot reach an agreement either directly or via mediation, negotiations through solicitors may be required and/or an application to the court.
How do I know what I am entitled to?
It is important you understand the options available before deciding how to deal with the financial arrangements between you. Married couples have the right to make financial claims against each other in respect of the following;
- Property adjustment orders (i.e. orders for sale of properties or transfer of ownership)
- Lump sum orders (payments of capital)
- Maintenance (i.e. income payments)
- Pension sharing orders
Regarding the financial arrangements between spouses, the court takes various matters into account when considering what orders should be made. The Court considers all the circumstances of the case, gives first consideration to the welfare of any children of the family under the age of 18 and in particular, the Court has regard to the following matters which are set out in Section 25 of the Matrimonial Causes Act 1973;
- The income, earning capacity, property, and other financial resources which each spouse has or is likely to have in the foreseeable future including, in the case of earning capacity, any increase in that capacity which would be in the opinion of the Court reasonable to expect a person to take steps to acquire.
- The financial needs, obligations, and responsibilities which each spouse has or is likely to have in the foreseeable future.
- The standard of living enjoyed by the family before the breakdown of the marriage.
- The ages of each spouse and the duration of the marriage.
- Any physical and mental disability of each spouse.
- Contributions which each spouse has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family.
- The conduct of each spouse, if that conduct is such that it would be in the opinion of the Court to be inequitable to disregard.
- The value to each spouse of any benefit which one spouse because of a divorce will lose his chance of acquiring (most usually pension provision).
The aim of the Court is to achieve fairness. A key factor when determining matters is the reasonable needs of yourself and your spouse. The Courts also take into consideration the concepts of ‘needs’, ‘compensation’ and ‘sharing.’
Before you can fully understand how the matrimonial finances should be divided there should be some form of financial disclosure between you. That will enable you/your solicitor to understand exactly what is in the matrimonial pot to be shared and the most appropriate way of doing so in order to meet your respective income and capital needs.
Once you are happy that you understand both of your financial positions you can consider putting forward proposals for settlement.
What if we can’t agree how to split the finances?
If you are unable to agree between you and solicitor’s negotiations prove unsuccessful, an application to the court for financial remedy may be required. This should not be considered as a hostile step as it will ensure a timely resolution to proceedings.
The court will make directions as to the evidence required from both of you and set dates for when the evidence should be provided. There will be various hearing dates set to progress your case through to resolution.
What do we do if we have reached an agreement between ourselves?
If you have reached an agreement, you are both happy with, you should contact one of our expert family law advisors who will be able to convert the agreement into a legally binding Consent Order and prepare the accompanying documents for the court’s consideration. Approval of the Consent Order is not a rubber-stamping exercise, so it is important your agreement is presented in the best way possible to explain any imbalance.
What are the risks if we do not formalise our financial agreement?
Even if you do not have any marital assets to split, it is still important to file a Consent Order with the court to provide for a clean break between you. If you do not you leave yourself open to a claim from your former spouse at any time. This is particularly important if your financial position changes further down the line.
What should I do if I want to deal with the divorce myself but need help to resolve the financial aspects of my marriage?
Our family team are experts in our field and that means you can come to us knowing we have the attitude and professionalism to make your situation better. Whether you have reached an agreement between you, or you need advice on what you should do, we will be able to advise you on how best to deal with your situation and reach a timely resolution.