Making the decision that your marriage is over is a difficult and emotional one for many. Once you have decided to get divorced, most people would like to be able to complete the formalities as quickly and smoothly as possible. However, the historic rules have often meant that the process could often be confrontational and one partner could refuse to cooperate.
Such was the situation in the recent case of Owens v Owens where the argument centered on whether Mr Owens had behaved in such a manner that it was unreasonable to expect his wife to continue to live with him. The court found that his behaviour did not meet the legal standard for unreasonableness, and without his consent to the divorce, the only option for Mrs Owens was to wait until they had been separated for five years.
‘From April 2022 you will be able to apply for a no-fault divorce in England and Wales, and this will be welcome news for many who seek a divorce without having to point the finger of blame at their former spouse,’ says Rebecca Massam, a Partner in the family law team with Warners in Sevenoaks.
Under the current rules, you can only obtain a divorce if you can prove your partner is at fault because of adultery, unreasonable behaviour, or desertion. Alternatively, if you both agree, then you can divorce after two years of separation. If your spouse does not agree and you cannot prove any fault, then you need to be separated for five years before you can obtain your divorce, as was the case for Mrs Owens.
What will change in April 2022?
New divorce laws will replace the existing laws, meaning you will be able to apply for divorce by simply citing that the marriage has broken down irretrievably. It will not be necessary to wait years, or to have to blame your spouse for causing that breakdown.
If you both agree to divorce
Under the new law you can apply for your divorce jointly. Both of you can give notice to the court and sign, as part of your application, a joint declaration confirming the irretrievable breakdown of your marriage.
If one spouse disagrees
Either of you can give notice to court and sign a declaration as part of your application that the marriage has broken down irretrievably. It will not be necessary for your spouse to agree to, or to sign, the declaration. Your application must then be sent to your spouse.
There will be some changes in the terminology used for all divorces under the new law from April 2022.
Under old rules you would Petition for divorce, and the person doing so would be the Petitioner. Under the new rules, you would be the Applicant and make an Application for divorce. If the court were satisfied that there should be a divorce, then they will grant a Conditional Order, which used to be known as a Decree Nisi, and then finally, when the required time frames have been complied with you can obtain your Final Order which replaces the old Decree Absolute.
Removal of objections
Defending a divorce will be more difficult. Under the old rules, if you do not wish to get divorced then, as Mr Owens managed to do, you can defend yourself against the accusations of fault. Alternatively you can contest the length of your separation.
Under the new simplified legislation these bases are removed. Defending a divorce will now only be possible on very limited grounds, such as objecting to the validity of the marriage, or objecting to the court having jurisdiction.
Is this a quickie divorce?
In a word: no. The changes coming in April 2022 include a 20-week cooling off period to provide an opportunity to change your mind between having applied for your divorce and the conditional order being made.
After the conditional order has been made, you must wait a further six weeks to obtain your final order. Bearing this in mind, it will not necessarily be a ‘quickie divorce’ but is certainly quicker than waiting two or five years.
Eliminating the need to find fault will undoubtably speed matters up in some cases and will reduce potential conflict.
It can often be extremely upsetting to read the allegations which have been made against you in a divorce petition. Removing the need to prove fault will remove some stress and acrimony for many couples and their families.
Often divorce does not stop the need to communicate with your former spouse especially when you have children together. Having a less contentious divorce should help to maintain better relations and communications which will ultimately benefit everyone. It can greatly assist children to come to terms with their new life, if they can see their parents communicating amicably, and one day you may find yourselves sitting in the same room together at parents evenings, graduation ceremonies, and weddings, so maintaining some sort of relationship is always going to be in the children’s best interests.
The benefits also include keeping costs down and saving on court time. Defending a divorce is expensive and timely. Mr and Mrs Owens spent a significant amount of time and money on their legal battle. The new rules will mean defended divorces will become almost unheard of.
It is however important to note that in most cases the lion’s share of legal costs arises in relation to disputes over the financial separation rather than the actual divorce.
How we can help
Every couple is unique, and our family lawyers will explain and discuss the options with you so that you can evaluate the best way forward. For further information, please contact our family law team on 01732 747900 or email [email protected] Warners Solicitors has offices in Sevenoaks and Tonbridge.
For further information on any aspect of relationship breakdown or divorce, please contact the family law team on 01732 747900 or email [email protected]. Warners has offices in Sevenoaks and Tonbridge in Kent.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.