No Fault Divorce? What happens to finances?

December 8, 2021

The Divorce, Dissolution and Separation Act 2020 heralds a massive reform of divorce law, although implementation has been delayed and we are told it will commence on 6th April 2022.

It will allow one or both parties to apply for a “divorce order” (no more archaic petitioning for divorce).  The same is true for civil partners, although they keep their terminology – they still applying for a dissolution order.  Judical separation is similarly updated – the application can be by one party or by the parties jointly.

Gone is the need to prove one of the five established facts (adultery, behaviour, desertion, living apart with or without consent) although the application is accompanied by a “statement…that the [marriage/civil partnership] has broken down”.  The rules which will set out the mechanics of the divorce process have not yet been made available, so we do not yet know the format of that statement.

The process will take around 26 weeks which is similar to the current timeframe.  We would usually advise a client who is in the process of negotiating a financial remedy consent order, or who is applying to the court for an order, to delay applying for Decree Absolute – which extends the time frame further – and it seems likely that such advice will continue.

The government set up a “portal” to enable on-line divorce and simplified the procedure somewhat.  There has never been any expectation that parties should be legally represented and the on-line process underpins that by streamlining the process.  The new procedure will doubtless build on that.

Getting a divorce does not address the financial arrangements – they are entirely separate.  Anyone who is currently contemplating divorce proceedings (or for that matter, has obtained a Decree Absolute but has not entered into a Financial Remedy Consent Order) may like to know that since January 2020, it is, in certain circumstances, possible for the parties to jointly instruct one lawyer to draft a consent order for them, thus saving expense.  This will occur if there is a substantial common interest, or if they have the same objective.  This fits in well with the new joint-application divorce process.  There are some circumstances which would prevent one lawyer acting – for instance, domestic abuse, alcoholism, mental health issues, if one party is unwilling to negotiate, if one party has already instructed a laywer, or if there are non-disclosed assets.

For the uninitiated, a Financial Remedy Consent Order is important because a Decree Absolute or a Divorce Order does not prevent either party from making financial claims against the other, even many years in the future, whether money changed hands or not.  Local celebrity/businessman Dale Vince (of Ecotricity and Forest Green Rovers fame) found this to his cost because although his former wife’s claim failed, she was able to issue proceedings against him and so he was put to the time, trouble and expense of defending against her application for a financial remedy.

There is a model financial remedy consent order which parties are encouraged to use. https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Reports/family-orders-project/financial-remedy-omnibus.doc.  It is however lengthy and extremely technical as it covers a number of eventualities, most of which will not be relevant in any one matter.  Even with such an exhaustive “menu” of clauses, it is very often necessary to add some additional ones in.  The fact that parties can now jointly instruct one lawyer to  draft the order to tailor an order to their requirements represents not just a cost saving; it also engenders a conciliatory approach which is of particular importance if there are children of the marriage – whether under or over 18.

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