Is it worth waiting for no-fault divorce to come in?

Divorce|January 13th 2020

Waiting for no-fault divorce

As I mentioned here last Friday, the Government has re-introduced the Divorce, Dissolution and Separation Bill, which is intended to bring in a system of no-fault divorce, to Parliament. 

It appears that the Bill will be passed. The Government has a large majority, the Bill has cross-party support, and there is no sign of any significant opposition to the Bill, or any of its provisions. 

So if you are considering commencing divorce proceedings, is it worth waiting for the new law to come into effect? After all, it will do away with any need to attribute blame for the breakdown of your marriage, and will, therefore, reduce the chances of animosity, and therefore make it much more likely that arrangements for any dependent children and finances will be sorted out amicably. 

Simple answer 

The simple answer to the question is: probably not. It is still not absolutely certain that the Bill will pass, and if it does it is far from clear when that will be, and even less clear when its provisions will come into effect. After it is passed, new rules will have to be implemented, and new forms and procedures sorted out. The best guess is that the earliest we can expect to finally have a no-fault divorce is towards the end of this year, and it may well not be until early next year. 

So if you want to wait, be prepared for it to be a long wait. 

But there is also perhaps a less simple answer. 

It depends upon the circumstances of your marriage breakdown. There may be situations in which waiting might be the best thing to do. 

Three scenarios 

Take, for example, the following three scenarios: 

Scenario 1:

You recently separated from your spouse. Your spouse is unlikely to consent to a divorce and hasn’t committed adultery. Under the present law, your only options are to wait until you have been separated for five years, or to allege that your spouse has behaved unreasonably. You would rather not take the latter course, but waiting for five years would be unbearable, so you are considering issuing an ‘unreasonable behaviour’ divorce petition anyway. How about just waiting until no-fault divorce comes in instead? Then you will not need to make any allegations against your spouse, and will not need their consent to a divorce.

Scenario 2:

 You want to issue divorce proceedings on the basis of your spouse’s ‘unreasonable behaviour’. However, they don’t want a divorce, and you are certain that they will take strong objection to any allegations you make, and will defend the divorce, making the divorce take much longer, be more expensive, and more stressful. Why not wait until no-fault divorce comes in, instead of issuing the divorce now? That way, you will not need to make any allegations against your spouse, who will not be able to defend the divorce. 

Scenario 3: 

You are about to issue divorce proceedings on the basis of five years’ separation (your spouse will not consent to a two-year separation divorce), but you fear that your spouse will oppose the divorce, on the ground that the dissolution of the marriage will result in grave financial or other hardship to them. In this case, you could wait until no-fault divorce comes in, as the Bill (if it is passed in its present form) will do away with the provision under the current law enabling the court to refuse a five-year separation divorce on the ground that it will cause the respondent to suffer financial hardship. You, therefore, won’t need to worry about that possibility. 

Disclaimer! 

Now, all of the above is just a bit of a ‘thought experiment’. It most certainly does not represent legal advice. If you are considering commencing divorce proceedings, you should seek the advice of a practising expert family lawyer. Stowe Family Law has the expertise you need. For further information, see this page. 

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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