Practical Pitfalls with England’s New Divorce Law
The Divorce, Dissolution and Separation Act introduced the concept of no-fault divorce into England and Wales from April 2022.
Divorcing couples are no longer required to cite a specific reason for the irretrievable breakdown of the marriage.
In this article, we will highlight some practical pitfalls with the new divorce law, so called no-fault divorce.
Prior to the new rules, it was necessary to choose from one of the following five “facts”:
- Unreasonable behaviour
- Adultery
- Desertion
- Separation after 2 years (with mutual agreement)
- Separation after 5 years
In practice, most people getting a divorce would simply choose “unreasonable behaviour” as a default option, even in the absence of any actual unreasonable behaviour, simply to be able to proceed with a divorce.
The introduction of no fault divorce dispenses with the requirement to specify any particular reason for the separation – so there is no need to justify why a marriage has irretrievably broken down.
Consequences of the new rules include
Here is a breakdown of the key divorce law changes coming into effect on 6 April 2022.
- No Contest It is no longer possible for the other party to try and contest the divorce application of their spouse. Prior to the new rules, a spouse who did not want to get divorced could challenge the “fact” and essentially force their ex-partner to prove that there had been unreasonable behaviour etc. Contested divorces could drag on for many months or years, ending up in the courts and resulting in substantial costs. Removing the ability to contest a divorce application means that the divorce process can proceed more smoothly.
- Minimum of 20 weeks reflection period The new laws introduced a minimum period of 20 weeks between the start of divorce proceedings and application for conditional order (previously called a decree nisi). Previously, there was no reflection period, so an uncontested divorce could result in a decree nisi being granted within a month.
- Joint Applications Under the no-fault system, the spouses can submit a joint application for divorce. This provides for a more collaborative approach compared to the previous system which involved an applicant and respondent.
- Legal Terminology Some of the terms used in the divorce process have been updated. For example, decree nisi is now called conditional order and decree absolute is called final order.
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The new no-fault divorce laws have been largely welcomed by most family lawyers, because the absence of a requirement of placing blame or assigning a specific “reason” to the breakdown of the marriage can reduce acrimony and result in a more harmonious separation.
Furthermore, removing the option for either spouse to contest the divorce means that there is less chance of the process descending into a long protracted court battle.
However, some concerns also have been raised about potential implications of the new rules, which we will consider below.
What concerns have been raised about the potential pitfalls of no-fault divorce?
1. Pension sharing
A recent report from Steve Webb, a partner at LCP, and Rhys Taylor, a barrister at The 36 Group, argues that one potential impact of the new no-fault divorce rules could be fewer divorcing couples sharing pensions. This seems to be largely predicated on the removal of the time conditional “facts” of divorce (separation or desertion) which, they imply, could lead to more swift divorces overall.
This reduction in waiting times, combined with the removal of the ability of the other spouse to contest the divorce could, they argue, lead to financial settlements being rushed through, without taking into account pension sharing arrangements.
Commenting, Steve Webb, said: “One group currently at high risk of retirement poverty is divorced women. In large part, this is because relatively little attention is often given at the time of divorce to a financial settlement which gives proper weight to pension wealth. It is entirely understandable that divorcing couples focus on other matters, but the risk is that people simply do not understand the value of pensions. Whilst there is much to commend the new divorce law, it would be very unfortunate if a by-product was that even fewer divorces were accompanied by a fair sharing of the couple’s overall wealth, and in particular of pensions.”
But it’s worth noting that divorcing couples under the previous regime could actually get divorced more quickly than under the new rules if they used the “facts” of unreasonable behaviour or adultery.
Therefore, the converse argument could be made that, due to the newly introduced period of reflection of 20 weeks, there is actually more time for separating couples to come to a financial settlement which includes pensions.
2. Tax Fraud
The aforementioned Webb and Taylor report also warns that there could be more potential for abuse of the pension tax relief system under the no-fault divorce rules:
“One unintended consequence of this ‘no-fault’ process is that it might possibly enable some wealthier couples to abuse the process in order to maximise the amount of pension tax relief which they can enjoy.”
However, just as with their previous argument, this seems to be predicated on a faster divorce process – and, as we have already discussed, the opposite is the case for couples who really want a speedy divorce.
3. Email service
Under the new rules, the default method of notification of divorce to the other spouse will be via email. They say that this could create several problems, including issues around privacy if a work email address is used. Following this argument, presumably SPAM blockers could also create problems with successful delivery.
However, digital divorce service already replaced paper service back in September 2021. So it’s unlikely that making email the default service method will create any significant changes.
4. Lack of accountability for unreasonable behaviour
Some experts note that no-fault divorce prevents either spouse from holding the other accountable for any adultery or unreasonable behaviour which led to the breakdown of the marriage.
However, in practice, it was impossible to hold either party accountable under the previous regime if they were patient enough, ie they could simply wait for 5 years of separation to pass.
5. 28 days to serve divorce papers
Under the new rules, the person applying for divorce has 28 days to serve their spouse with divorce papers. There have been warnings from some lawyers that this could lead to applicants waiting until the last minute to serve the divorce papers in order to reduce the time available to negotiate a financial settlement.
This could arguably benefit a spouse who is in a stronger financial position.
What Are the Pros and Cons of No-fault Divorce
We’ve outlined the pros and cons of no fault divorce in a separate article, which explains the law changes in more detail now the new law is passed.
Frequently Asked Questions
Why Is Englands Divorce Law Changing?
Legal professionals and organisations have been campaigning for a no-fault divorce for many years.
It is believed that removing the need to apportion blame or fault will reduce the animosity and emotions that often come with divorce. This, therefore, should allow parties to focus on the central issues such as finances and children.
When Can I Get a No Fault Divorce?
You can apply for a no-fault divorce from 6 April 2022 provided there are no further delays.
However, in the meantime you can still apply for a divorce under the current process. This will be the quickest solution if parties are in an agreement to the divorce.
Can a No Fault Divorce be Contested?
One of the key changes to the divorce law will mean that couples cannot contest a divorce, which means that a divorce will be granted by a Judge on the basis of the irretrievable breakdown of the marriage.
Will No-Fault Divorce Affect Financial Settlements?
Many divorcing couples believe that if one spouse is proved to be at fault for the irretrievable breakdown of marriage it will result in a better financial settlement for the “wronged” spouse.
But for the most part, the actions of either spouse generally have no bearing upon the terms of a financial settlement. Even where negotiations over finances ended up in court, the judge would rarely place any weight upon the fault of either party for causing the divorce.
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