Article: Taking the blame out of the divorce game

Article: Taking the blame out of the divorce game

The Divorce, Dissolution and Separation Act 2020 has attracted a lot of media attention, and with good reason. Divorcing or dissolving couples are now able to do so without having to blame one another for the separation.

The old law (for proceedings issued on or before 5th April 2022)

Historically, couples could only divorce or dissolve their civil partnership if it had ‘irretrievably broken down’ for one of the following reasons:

  1. Adultery (in divorce cases only) – One of the parties had committed adultery, and the other found it intolerable to live with them.
  2. Unreasonable behaviour – One of the parties had behaved in such a way that the other could not reasonably be expected to live with them.
  3. Desertion – One of the parties had deserted the other for a continuous period of at least 2 years.
  4. Consent – The parties agreed and had lived separately and continuously for at least 2 years.
  5. Extended separation – the parties had lived separately and continuously for at least 5 years.

Divorce and dissolution is an undoubtedly stressful and horrible time. You are separating from the person you thought you would spend the rest of your life with. You may have children and want to make sure you can reach an agreement about how much they will see each of you. You may have assets that you have paid for together and you need to know how that will be divided so you know where you can afford to live. Many separating couples want to get through the process with as little stress as possible and move on with their lives.

The old rules did not allow for this without getting into legal arguments all about blaming the other for the relationship breakdown. If those blameworthy facts did not take place or could not be proven, parties were tied together for at least 2 years before they could agree to divorce or dissolve. Sometimes one party would refuse to consent because they were unrealistically clinging on to a doomed relationship, or because they were a domestically abusive party who would want to maintain some level of control over their partner. Those parties would be tied together for at least 5 years.

This all made parties resentful towards each other. It made child arrangements difficult and awkward. It made parties think the other person did not deserve an equal share of the matrimonial assets because, in their eyes, they had acted so awfully in the divorce or dissolution process.

The new law (for proceedings issued on or after 6th April 2022)

The new law changes all of this.

Parties no longer have to prove any of these factors. One party simply has to provide a statement that the relationship has irretrievably broken down. The other party cannot contest this (unless there are questions about the validity of the marriage or the court’s jurisdiction to consider the proceedings).

Interestingly (and helpfully for amicable separations), that statement can be presented by both parties jointly.

Once it is presented, there will be a period of reflection of a minimum of 20 weeks. This gives the parties time to consider the divorce and deal with some of the ancillary matters like child arrangements or matrimonial finances. After this time, the party (or parties) making the application will be able to apply for a conditional order of divorce or dissolution (the old Decree Nisi). After a further 6 weeks, the Court can then make a final order of divorce (the old Decree Absolut).

Moving forwards

The new law will help separating couple move on without unnecessary hostility. It will simplify the divorce and dissolution process and many couples will be able to deal with those proceedings without having to instruct lawyers.

Of course not all couples separate amicably, and even where they do there may still be complicating factors such as child arrangements, property or finances. This is where knowledge and experience of the process can be of great assistance.

An early discussion can often help avoid the costs of going to court by reaching an agreement. If agreement cannot be reached, that early discussion can help with making sure everything is in order before you ask the Court to make a decision on your dispute.

You might consider approaching a firm of solicitors if you would like professionals to handle the litigation or correspondence on your behalf.

If you think you can manage that on your own but you need advice on how to write a piece of correspondence, some advice on the law or somebody to represent you at hearings then you might consider approaching a Public Access Barrister. You might be looking for an independent person who can offer a neutral place to meet and act as a mediator (somebody who doesn’t take either side and tries to help you reach an agreement), or who can consider an agreed set of circumstances and give an independent opinion on the likely legal outcome (‘early neutral evaluation’). These are things we can help with at KCH Garden Square. If you would like to discuss your options, please do not hesitate to contact our Practice Management Team who will be more than happy to help.

Ben Chapman
Legal 500 Rising Star

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