Is it always best to jointly apply under the new no fault divorce?
The long-awaited Divorce, Dissolution and Separation Act 2020 which brings in no fault divorce will shortly come into effect in England and Wales. Under this new Act, spouses will for the first time be able to jointly make an application for divorce based solely on their statement that their marriage has irretrievably broken down. This is a marked shift from the current law, under which spouses must prove their marriage has irretrievably broken down due to either the fault of one of them through adultery, unreasonable behaviour or desertion, or they need to wait a significant period of time (2 or 5 years) before they can commence proceedings. Is it therefore always best to jointly apply to issue divorce proceedings under the new no fault divorce legislation?
It can often be the case that spouses are in very different emotional positions when it comes to separation and divorce. It is commonplace for one spouse to be further down the road when it comes to accepting their marriage is at an end than the other. This can lead to significant difficulties when it comes to dealing with the practical process of divorce. Under the current system, the person starting divorce proceedings can do this at any point and whilst it is best practice for lawyers to ensure that the other spouse has notice that divorce proceedings are going to be issued, there is no requirement for this. As such, the person receiving the divorce proceedings can be very shocked and regularly will need time to process the breakdown of their marriage before they are in a position to deal with the practicalities of the divorce. Through the changes coming into effect next month, couples will for the first time ever have the ability to jointly apply for the divorce process. This means that these very practical steps can be taken when both parties are emotionally ready to do so. By proceeding with divorce when both spouses are emotionally ready to do so, this should help couples focus their minds on the practical matters that need to be dealt with alongside the divorce itself, i e settling the financial matters or the arrangements for their children more quickly and constructively, without increasing any unnecessary acrimony from the start.
On a very practical level, the ability to jointly apply for divorce proceedings also allows couples to take joint responsibility for dealing with the divorce. This can be a very empowering situation as it ensures that both spouses are fully involved.
Many people believe that the change in the law has been a welcomed overhaul to an archaic system. The divorce process can be a long and stressful one. If spouses have to commence proceedings without holding one person responsible for the breakdown, this could ease the stress that so many endure. It may also set the tone for a more amicable and inexpensive divorce process from the outset.
There does, however, remain an option for one spouse to initiate divorce proceedings alone. This is a vitally important option as it means that going forward, there will no longer be an opportunity for one spouse to prolong a marriage and trap the other spouse in the marriage when they feel it has come to an end. Under the current law, if one spouse does not want to get divorced then the only way to obtain a divorce without that spouse’s consent is to live apart for at least five years. The unfairness of this situation has be a key driver for the upcoming changes in the divorce law.
It also provides the opportunity for spouses to agree that one of them will initiate divorce proceedings which will assist one or both of them come to terms with the ending of their marriage. When marriages end as a result of one spouse’s unfaithfulness, being able to set that out and have the spouse accept that can be a huge part of the emotional acceptance that a marriage has ended. Whilst the new no fault divorce does not require any reasons to be provided some spouses may, nevertheless, find it helps them emotionally to be the person that starts the divorce proceedings as validation for why the marriage broken down and ultimately to obtain closure.
Under the new process there is also the ability to alter a divorce from a jointly made application to an application made by one spouse where this is necessary. This again is an important step forward, as it means that spouses will no longer be able to use the divorce process itself as a means to exert control.
At the end of the day, whether you choose to jointly apply for divorce under the new no fault divorce is a personal choice.
If you have any questions about no-fault divorce and how it will impact your situation then please contact a member of our specialist family and matrimonial team who will be happy to assist you.