With Elmhirst Parker Solicitors, Barnsley
Hailed as the biggest shake up in divorce law in fifty years, the new no-fault divorce system hopes to reduce conflict and costly acrimonious litigation in relationship breakdowns by taking away the blame game.
The Divorce, Dissolution and Separation Act 2020 came into force on 6th April 2022, replacing the existing Matrimonial Causes Act 1973. Previously, divorce proceedings required one party to prove their partner was at fault through adultery, desertion or unreasonable behaviour. The only alternative was a lengthy period of separation: two years where both parties agree to divorce, or five years if one side does not consent.
The new DDS Act allows married couples to issue divorce proceedings without assigning blame or proving a certain behaviour; only a statement of irretrievable breakdown will be needed for evidence. With no facts to dispute, a respondent cannot contest the decision other than for reasons such as lack of jurisdiction or invalidity of marriage.
Couples must still have been married for at least 12 months and the sole grounds for divorce are that the marriage has broken down irretrievably. But it is now possible to file for divorce jointly, allowing couples to reflect a mutual agreement to part.
No-fault divorces are also set to speed up the divorce process, shifting to an online service where divorce papers are sent by email. The DDS Act introduces a minimum period of six months from initiating divorce proceedings to when the final order – previously known as a decree absolute – can be granted.
It is important to state that divorce proceedings only legally end the marriage. Financial matters need to be dealt with separately. A legally binding financial settlement order is needed to agree how joint assets or finances will be divided. But this can be more challenging and complicated than the divorce itself.
Speaking to a family lawyer is the best way to protect yourself against making costly mistakes. If couples save money on needless legal arguments via the new no-fault divorce, this should enable both parties to have more productive conversations and make sensible arrangements about finances and children.
When this involves complex financial assets, such as pensions or investments, it is more likely couples will call on specialist input. But for anyone needing to reach agreement, getting guidance in the early stages is likely to result in a faster, more cost-effective and mutually agreeable outcome.
If children are involved, parents should talk to them and prepare the ground for separation, while avoiding putting children in a position where they feel they must take sides.
Most parents will want to avoid subjecting their children to court proceedings at all costs. They would also prefer to see results in days rather than months, particularly amidst lengthy delays in the family court system. Alternative dispute resolution often proves more cost-effective for couples because having a fixed, shorter timeframe can keep the lid on legal fees.
If suitable, mediation should be the first port of call. Talking things through calmly and openly is always best, but it may help to have someone sit in to help focus those conversations on positive negotiation. Expert input can also ensure that any agreement over assets or custody arrangements is fair for both sides.
Arbitration is another alternative to court, if separating couples are unable to come to an agreement through mediation. An arbitrator is a legal professional with specialist training, who will send their decision to the court so it can be turned into a legally enforceable order. This would have the same force as an order initiated by the court but cuts out the waiting time. As a private arrangement, once a date is fixed, it will not be pushed aside by other cases with higher priorities.
Whatever route is taken, seeking out the right help and support can make all the difference for couples, so they come through the divorce with a sense of a positive resolution, where everyone has an outcome that works for them and feels fair.
*This is not legal advice; it is intended to provide information of general interest about current legal issues.