For the record, the first working Monday in January is “divorce day”. It is, according to many newspapers, the day when spouses who have struggled to hold a shaky marriage together in hopes of having a merry Christmas flock to family lawyers for advice to back up their resolutions of the New Year for a new beginning. In our experience of over 20 years of practice, we cannot say that we have ever truly seen such a clearly discernible pattern. Indeed, we suspect that September, after what may have been a busy summer vacation, possibly also with school exams or sensitive educational considerations, is a busier time for new divorces. It may seem that the family law practitioner’s attention then shifts from preparing prenuptial agreements for summer weddings to advising on new divorce applications.
However, the popular press still tends to put out the same articles year after year, with comments about “new year, new me; new start; ‘Christmas Pressure Cooker/Perfect Storm of Tension’ for families who have struggled in a difficult relationship. Even if one accepts the proposal of an annual “Divorce Day” in January, there is good reason to think that in 2022 new inquiries and new applications for divorce could be pushed back from the first days of January to first days of April. This is not for sociological or family reasons, but because of the imminent coming into force of a new Act of Parliament which will revolutionize the way divorce is handled in this country.
Effective April 6, 2022, the provisions of the Divorce, Dissolution and Separation Act 2020 will come into effect. This will be the biggest shake-up to divorce law in over 50 years. Parties will no longer have to detail in numbered paragraphs the details of their spouse’s adultery or the many ways in which their spouse’s behavior was so unreasonable as to cause the irretrievable breakdown of the marriage and how much that made them feel terrible. Under current longstanding law, such allegations of misconduct and wrongdoing are mandatory unless the parties have agreed to wait at least two years to divorce on the much simpler and less controversial ground of two years of separation with consent. Unless the need for a divorce is urgent, it therefore seems likely that parties wishing to divorce in the first months of 2022 will prefer to wait until the new procedure is in force in April, rather than rushing in early January with a divorce petition. which requires at least some degree of “bashing”. (It should be added that where circumstances permit and a separation can wait until the start of the new tax year in April, there may be the added benefit of a longer period for the any tax-neutral asset transfers between spouses during the tax year of separation.)
So what are these new changes? Under the law (which also applies to divorce, dissolution of civil partnership and legal separation), the parties will have the right to divorce simply by confirming to the court that there has been an irretrievable breakdown of the marriage. . Instead of the existing and divisive approach of requiring one party to make formal allegations of wrongdoing against the other, not only is there no blame in the new process, but it will also be possible for the parties to work cooperatively to file a joint petition for divorce. . Under current law, by contrast, a great deal of time, money and goodwill is wasted trying to agree on who will blame whom for what, or defending and amending claims that have been made without prior consultation. .
It must be extremely beneficial to try to spread what is usually a tricky and difficult process. The importance of setting the right tone and approach at the outset can be so important in how issues are handled later, and allows parties to focus more constructively on the most important issues such as arrangements of their children and how their finances should be separated. .
Under the new law, there will be no possibility of defending the divorce (although legal challenges are still possible on the basis of incompetence, invalidity of marriage, fraud, coercion and compliance with procedure, for example). The legal language is also changing, in favor of “plain English” with a “Decree Nisi” divorce becoming a “Conditional Order” and a “Decree Absolute” divorce becoming a “Final Order”. A conditional divorce order will not be possible until a cooling-off period of 20 weeks has elapsed from the date the proceedings were filed and, as now, a further 6-week period is required before a final order can be obtained. Divorce will still not be possible during the first year of marriage.
The regulations needed to make consequential legislative changes were tabled in Parliament on January 11, 2022. These amend previous primary and secondary legislation, as required and there will be great fanfare when this long-awaited and warmly welcomed reform is introduced. effective April 6. Family lawyers have been campaigning for decades to have no-fault divorce introduced. It will be interesting to see if this causes a “Divorce Day” in the second quarter of the year rather than (anecdotally) the first month of the year, or, indeed, if the lawyer’s experience of the family of a vacation increase after the summer in surveys will always hold.
Lawyers in England and Wales are bracing for a surge in divorce cases this spring as estranged couples look to new legislation allowing them to end their marriage without blaming each other.