Sharon Priday Managing Associate, Family and Matrimonial
Divorce now or await the change in the law?
There has been much publicity about the long-awaited change in the law brought about by the Divorce, Dissolution and Separation Act 2020. This Act becomes effective on 29 April next year and will enable proceedings ending the legal relationship to begin, without waiting for a minimum of two years following separation, or in the absence of separation, apportioning blame to the other party by providing details of the individual’s unreasonable behaviour or adultery.
For couples who have decided to bring their relationship to a formal end, consideration should be given to whether there is any benefit to issuing proceedings now, or wait until the introduction of the new law - which allows for no fault divorces.
A welcome change to family law
The change has been welcomed by both the public, legal professionals and academics. It is hoped that the move away from blame will enable separating couples to focus not on the past but on the future and will enable them to resolve both the financial issues and any issues regarding children in a less confrontational/hostile manner.
In reality, however, the legal profession has been enabling couples to end their legal relationship in this way for decades. The law currently requires a person seeking to end either a marriage or civil partnership before the couple has lived apart for two years, to rely upon the other’s adultery or unreasonable behaviour. The sting has long since been taken out of adultery by the third party not being named, and therefore not involved in the court process. All that is needed is for the other person in the relationship to confirm to the court that the adultery is admitted by them.
The sting has also been taken out of the other fact available, being unreasonable behaviour, in that the couple are encouraged to agree the details of conduct to be included in the initial application to the court. The application is then more palatable to the other party and needless distress and hostility is avoided. Even if the couple are not able to co-operate in the drafting of the behaviour particulars, the particulars can still be drafted in a manner sensitive to the feelings of the other party and conduct which would potentially be regarded as offensive or deeply hurtful not included.
Once the application to end the legal relationship has been issued, the couple can then focus on the important issues arising from the relationship breakdown, including the financial implications and arrangements and future care of any children. It is these decisions that more often than not cause more anxiety, stress, upset and hostility than the reasons given in the application itself. A delay in those decisions and outcomes can cause those negative emotions to escalate. The sooner the process is concluded, the better for all, particularly any children. Both parties are then able to move on with their lives with their financial resources secured and confident in the arrangements made for their children.
The changes in the law to be brought about by the new Act are significant, however what effect it will have on the legal process is yet to be seen.
Family law advice
The ending of a marriage or civil partnership is a very serious and life-changing decision. It is not a decision that should be made in haste. It is a very personal decision and one that is unique and particular to the circumstances of an individual. If the decision to end the legal relationship has been made, depending on the circumstances around the end of the relationship, there may not be any reason or benefit to await the change in the law.
If you need any information or advice on any of the issues raised in this article, we have experts to assist you. We are here to help you with all of life’s challenges and be your trusted advisor.
Sharon Priday is a Managing Associate and member of the Family & Matrimonial at Ince. Sharon has practised in Family Law for 30 years and has extensive experience in dealing with matrimonial disputes at all levels.
Sharon can be contacted by email at firstname.lastname@example.org or by telephone on 07841 477239.
The information above is not and should not be taken to be legal advice. You should not take action or omit to take action based on this information. If you require any help on the issues raised above, please get in touch using the details above.