By Ruth Jackson

Barrister

Changes to divorce law – the first significant changes in nearly 50 years – will take place in April 2022.  In this article, we explore the details.

1: Could you summarise the changes in one sentence?

ANSWER: It will now be possible to obtain a divorce, without having to make allegations of fault, or without having to live apart for at least two years.

2: Does it change the grounds for divorce?

ANSWER: At present, there is only one ground for divorce, that the marriage has irretrievably broken down.  That ground is not changing.  What is changing is the evidence needed to establish the ground. 

3: What is the law at the moment?

ANSWER: Until April 2022, if you want to divorce straight away, one of the parties must make allegations against the other, of unreasonable behaviour or of adultery.  If the parties do not want to make those allegations, they must live apart for at least two years, and must both agree to divorce.  If one party does not agree, they must live apart for five years.

4: What is changing in April 2022?

ANSWER: There will be no requirement for either party to make allegations against the other, or for the parties to live apart for two years.  A statement that the marriage has irretrievably broken down is all the evidence that the court needs. 

5. Are there any other changes?

ANSWER: Some of the wording is changing as well.  “Decree nisi” will be called a “conditional order” and “decree absolute” will be a “final order”.

6: Do the changes affect how the court makes decisions about financial matters on divorce?

ANSWER: No.  The court will continue to consider the reasonable needs of the parties, and whether the matrimonial assets can and should be shared equally.

7: Are the new changes the same as a “quickie divorces”?

ANSWER: “Quickie divorce” is a phrase which the media use, but which doesn’t actually exist.  People who use the phrase may mean a divorce in which the parties do not resolve the financial matters.  Except in certain very rare circumstances, it is almost always in the best interests of the people getting divorce to take the time to unravel their finances, and for the court to approve the agreement they have reached.

8: Will the new divorce procedure mean that divorces can be granted more quickly?

ANSWER: At the moment, it is possible to complete the divorce process in a couple of months, particularly if the financial matters are already agreed.  In practice, the process often takes longer while the financial matters are being sorted out.  Under the new procedure, you will not be able to apply for the final order until at least 6 months after the application was begun.

9: What if my spouse wants a divorce but I don’t.  Can I defend the divorce?

ANSWER: In 2018 the Supreme Court decided a case of defended divorce.  Mrs Owens petitioned for divorce on the grounds that her husband had behaved in such a way that she could not reasonably be expected to live with him.   Mr Owens defended the petition, arguing that the marriage had largely been successful.  Although the supreme court had misgivings, a majority decided that Mrs Owens must remain married.  She could divorce her husband when she had been living apart for 5 years, and therefore no longer needed his consent to divorce.

In other words, Mr Owens could defence the divorce, but not for ever.

Under the new divorce laws, because there is no requirement to make allegations of unreasonable behavior or adultery, a statement by one party that the marriage has irretrievably broken down will be sufficient.

10. What should I do if I’m thinking about divorce: should I wait or start the process now?

ANSWER: If you have been living apart for two years, and your spouse will consent to divorce, or if you can both agree some suitable examples of unreasonable behaviour, you may wish to start the divorce process sooner.  This is particularly so if the financial matters are already resolved.  You would not have the minimum 6-month period to wait until you could apply for the final order.

But if you think that making allegations of unreasonable behaviour will only make the divorce process more unpleasant, you may wish to wait and start with the new process in April 2022.