As from 6 April 2022, we have new divorce law. The last time is was change was in 1973 so this is a really big deal – for lawyer nerds like me and for the people who want to get divorced. I doubt that you will see a change like this again in your lifetime. This is the first of a series of posts about this remarkable change.
So what is the big deal?
The current ‘old’ divorce law allows only one ground for divorce – that the marriage has irretrievably broken down. However, you have to go on and show the reason for the breakdown to be within one of five categories: Adultery, ‘unreasonable’ behaviour, desertion, separation for two years with consent and five years separation- no consent required.
Under the old law, the court had to consider firstly, whether the marriage had irretrievably broken down on the basis of the ‘reason’ given. There is also a bit of finger pointing/blame in the mix – and when a relationship breaks down, it is rarely that simple.
Under the new law, all that is needed is for one party to complete the application for a divorce that asks for a divorce on the ground that the marriage has broken down irretrievably. And that is it. There will be no further enquiry beyond that. No need to go over what went wrong and who did what and when. Simple. Clear and no blame.
Any thing else?
For the first time, there can be joint applications for a divorce. That is totally new and very welcome. It changes the culture and the conversation, hopefully towards a less adversarial and more problem solving culture.
Additionally, the basic presumption in terms of costs is that there will be no costs orders – an area that often causes disagreement.
Any problems with the new law?
On the whole, it is really well received but, as often happens with new law, there are some areas of concern about how things will work in practice.
Where there is a sole applicant, the application for divorce should be served/sent to the other party (still called the respondent) within 28 days of issue of the application for divorce and if it is not, there should be an application to extend the time for service. The rules are a little be vague about what happens if the application is not made – as in I can’t see that there are any consequences if the application is not made.
The difficult issue of divorce interplaying with pensions and pension sharing has not been solved by this new law either – which is an opportunity missed in my view.
The divorce still comes in two parts – the conditional order and the final order. The conditional order is important because it unlocks the financial powers of the court, however, the earliest date that it can be applied for is 20 weeks from the date of application for a divorce – and only then if it has been served properly and there are notice periods if you started as a joint application and only one of you is applying for the conditional order. Then there is the processing time of the court for the application for a conditional order. After that, there is a wait of six weeks and 1 day before the final order can be applied for.
So, whilst it is being said that the divorce can be finalised within 26 weeks – or 6 months basically, in practice, I think that will be very rare, building in the court processing time and the other notice/waiting times. This is quite an extension to the time for getting a divorce finalised. I have had cases where we have managed it around the 4 month mark. In practice, I think the main pinch point will be where the financial matters are settled and the parties want to get the financial paperwork into the court but the conditional order has not been made and so they have to wait for it. Time will tell.