After years of campaigning, the much heralded no fault divorce procedure came into effect on 6 April 2022. It is the biggest reform of divorce law in 50 years. The significant factor is that under the new legislation, the Divorce, Dissolution and Separation Act 2020 (DDSA), there is no longer the need to assign blame if couples wish to commence divorce proceedings without having to wait for a minimum period of two years’ separation. The only requirement is to confirm that the marriage has broken down irretrievably. As there is no longer a “fault element”, it will no longer be possible to contest the decision to divorce.
The new divorce procedure is to be welcomed because by removing the element of blame, and reducing conflict, it should enable the parties to concentrate on the more significant aspects of marital breakdown comprising financial matters and arrangements for the children. Figures released show that following the change in the law, applications doubled from those of the previous year. Couples are also finding it easier to deal with the initial process themselves rather than seeking legal advice although legal advice would ensure that those applying are fully aware of all their options and the changes brought in by the new law which include the timescale and terminology.
However, the biggest concern, as a practitioner, is that one party can now initiate proceedings without the other’s consent which in turn may leave the other party vulnerable. The new law applies solely to the divorce aspect, which is a procedural exercise, and does not address the financial issues or arrangements for children. Therefore, it is crucial that once proceedings are issued, the parties seek legal advice to ensure that these aspects are addressed. There are potential risks to the parties if the final order (decree absolute) is made before the finances are resolved and a final settlement reached. Even where parties are amicable, and the divorce proceedings agreed, there may remain issues regarding the finances which can only be resolved with professional help and guidance. These may include the former matrimonial home and the joint mortgage, pension sharing orders and spousal maintenance. Until these issues have been addressed it will be difficult for the parties to know what they are entitled to as a settlement. Pension entitlement is easily overlooked without professional advice, which could result in one of the parties being left financially vulnerable in the future. Even where matters are agreed, if a clean break is required, advice will be necessary to deal with the consent order and accompanying documentation. A court order must be obtained if a pension share is part of the settlement.
It is always best to have advice at an early stage to ensure that nothing is overlooked. Any subsequent decisions will then be made on an informed basis. Also, it is also preferable to deal with the financial arrangements as soon as possible following separation. Professional advice will provide the parties with the support and reassurance needed at the most critical stage of the process to ensure equal control of the decision making.
Seeking legal advice should not be seen as a challenge to an amicable settlement, but as a constructive means of ensuring that arrangements are dealt with as smoothly as possible to avoid any subsequent misunderstandings.
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