However, the waiting isn’t over yet. Lord Chancellor Robert Buckland has said that the reforms will not come into force immediately because the implementation needs to be considered carefully. It is expected that it will be Autumn 2021 before no fault divorce is available to separating couples.
We appreciate that the Government is committing to getting this massive upheaval to divorce correct before introducing it, but we also acknowledge that this means that couples separating have a difficult decision to make. We’ve rounded up some of the reasons couples might consider waiting, and some of the reasons that might influence couples to carry on under the current legal framework.
Many divorcing couples have found that the current fault-based system has increased conflict when trying to resolve financial matters. Even though the fact used for divorce has no bearing on the way financial matters are resolved, it still encourages an adversarial process with one party as the wronged and one as the wrongdoer.
This adversarial approach can affect the way financial negotiations are carried out. Couples who have already started on blaming each other or assigning fault may find it harder to negotiate constructively. However, being able to separate without blame will encourage spouses to approach the matter with a mindset of “what do we need to do now to move forward?”.
This might be even more important where children are involved. Parents that separate and divorce are still parents, and still need to work together to support and look after their children. Parents who are separating may be inclined to wait to prevent the current adversarial nature of divorce having any impact on how they work together after they have decided to separate.
A true reflection
Many spouses acknowledge that neither party is solely to blame for the marriage ending. Some couples may fall out of love or decide that the relationship has simply run its course – and sometimes this may be a mutual decision between spouses that want to maintain a good relationship.
Rather than artificially create blame for the marriage breaking down, these spouses may prefer to wait until the marriage can be ended simply because it has broken down.
Currently, if both partners mutually agree the marriage is over but don’t wish to apportion blame, they must have been separated for a two-year period. Many couples have already weighed their options and decided that the benefits of going through a divorce based around mutual consent outweigh the benefits of resolving matters as quickly as possible by taking part in the “blame game” – this fact is the second-most commonly used fact identified for the breakdown of the marriage.
As a result, waiting until Autumn 2021 may not change plans significantly for people already waiting and could even result in a shorter waiting period – it might be just over a year away.
Why not wait?
Some people reach the decision that the marriage is over and want to move on from the legal relationship as soon as possible. They may be horrified by the idea of waiting over another year feeling trapped in a marriage that they have decided is over, and therefore decide that their only option is to progress their divorce through the current law.
In some cases, couples may even feel that although the current law is an adversarial process encouraging blame, it is still preferable to sort everything out immediately, rather than waiting in a marriage both agree is over and letting potential resentment build over time.
In addition, if one spouse has met a new partner that they would like to marry, they will need to obtain a divorce before their new marriage can take place.
Sorting out financial matters
The Family Court has powers to assist separating couples. However, the Family Court cannot make orders until a divorce has reached Decree Nisi stage, and an application to resolve financial matters cannot even be presented to the Court until a divorce has been issued.
Where there are arguments over finances that cannot be resolved amicably, it will still be important to bring a divorce petition. This way, the matter can be resolved by the Court using their powers to decide on what the financial settlement should be.
Even where matters are sorted out amicably and both parties agree to go their separate ways, financial ties are not fully ended until a final “clean break” order is made by the Court. Couples that want the security of knowing all financial matters are fully resolved may still need to begin their divorce under the current blame-based system to ensure that they are fully protected.
Thinking about inheritance
Until a divorce is granted by the Court, a couple will remain legally married. This is the case no matter how many years they have lived separately from each other, or if one partner moves to another country, or if both move on and find new partners.
This means that if one spouse dies without a valid Will in place, their separated spouse could inherit everything from their estate. Equally, if the person made a Will at the beginning of their marriage which left everything to their spouse, simply separating will not invalidate the Will and again, their separated spouse could inherit everything from their estate.
While this issue can be potentially be dealt with by making a Will, some people may feel that obtaining a divorce may be better, so that if there is an unexpected death the legal status is clear to their loved ones who are trying to resolve matters.
So, is it worth the wait?
The decision is not an easy one. We recognise that every separating couple has different priorities. Some couples will prefer to resolve legal and financial matters as soon as they have decided that they no longer want to continue with the marriage. Some couples will find the separation difficult enough without having to decide who will be blamed for the marriage breaking down. The choice will come down to each couple and will depend on their own unique circumstances.
Whatever the circumstances, we will be here to support separating couples. We offer free initial over-the-phone advice and can discuss the options in more depth. If we are instructed to advise on financial and property matters we never lose sight of the fact that although practical issues need to be resolved, feelings and emotions are just as important