Wednesday, 10 April 2019

New Divorce Laws Explained: Pounce or Wait?

The government has just announced its divorce law reforms. If you are hoping to take advantage of them, you will need to be patient. Parliamentary time has to be found for the bill when it is ready. The bill is likely to sail through Parliament (yes, I know they said that about Brexit) but could not be implemented until procedural rules had been drawn up which will be complicated. It could be two years (or more or less!) before the changes are in force. So, don't book the priest (incidentally, the Fleabag cleric is not available) for your remarriage quite yet. Of course, you could always take advantage of the present laws if you can establish one of the five factors which would lead to your freedom - your spouse's adultery, unreasonable behaviour, or desertion which has lasted for at least two years, or a period of separation which has lasted for at least two years if your spouse agrees to  divorce or at least five years if your spouse does not agree or you cannot find them. Divorce on the basis of five years apart will hardly ever be denied whatever the stance of the other party.

Over to the reforms, then. No divorce or civil partnership dissolution until at least one year has elapsed since the ceremony. Then you will be able to go for freedom by lodging a statement with the court confirming that the relationship has irretrievably broken down. You won't have to rely on any of the existing grounds. Just irretrievable breakdown. The statement can come in from you alone or jointly from you and your spouse. Once at least 20 weeks have elapsed from lodging the statement, you will be able to apply for the first decree (it's called the decree nisi in divorce now but its name will change) and then, after at least a further six weeks, you will be able to apply for the second and final decree (it's called the decree absolute now but, again, its name will change). Don't imagine that it will all be over and done with at the end of the 26 weeks. These will be minimum periods and documentation will have to be processed by the court. Nothing will be automatic. It will be down to you to ask for each of those two decrees.

The court will have power to expedite the second decree. It may also be given power to expedite the first decree. It could be given the power to hold up the second decree where financial matters have not yet been resolved.

Cases will almost invariably be dealt with 'on paper' without any personal attendance at court except in respect of any financial applications or child welfare disputes. The present scheme for online divorce etc which is not yet in full flow will have to be adapted to cater for the new procedure. Don't hold your breath!

The nullity law is untouched. It will continue to be possible to ask for a separation decree instead of a divorce  - even within the first year -but, in that event, it would not be necessary to show that the relationship had irretrievably broken down. The court can make lots of financial orders where just separation has been granted.

You will find a great deal of material on the present divorce and other matrimonial law and on how to bring and counter financial applications in my book Breaking Law. Have a read but I'm afraid you will have to buy a copy. Well, not too afraid!

Happy times.