Could divorce day be postponed to the spring?

Marked in many family lawyers’ calendars, the first working Monday of the New Year is often associated with a flurry of divorce enquiries and has been notoriously coined by the media as “Divorce Day”.

Couples often announce their separation after the holidays, to ensure that children experience a normal Christmas. Additionally, stresses over the holidays often push people to breaking point and lead to re-evaluations of personal relationships in the New Year. You don’t have to look far to see posts of New year, new you.

However, in light of the new Divorce, Dissolution and Separation Bill, announcing “No Fault” divorce, coming into force on 6 April 2022, this so called “Divorce Day” could be pushed back until the spring.

What do the changes mean?

This year a new law the Divorce, Dissolution and Separation Bill, which was granted Royal Assent in June 2020, will come into force and may see Divorce Day move to April 6th as couples seek to avoid blaming their spouse for the divorce.

Family lawyers overarchingly welcome this development as it will undoubtedly help to take some of the acrimony out of the divorce process.  The new no-fault divorce law removes the need for one party to “blame” the other, eliminating the possibility of exaggerating or embellishing the other’s supposed unreasonable behaviour in order for the court to conclude it would be unreasonable to expect the parties to remain married.

The new law will also stop one spouse contesting a divorce if the other wants one, as a statement of irretrievable breakdown will be conclusive evidence that the marriage has irreversibly broken down and the court must then make a divorce order.

Should separating couples wait?

In many ways there’s a lot of sense in clients waiting for the no fault divorce. But if they are extremely keen to proceed then delaying may not be the best option.  In reality few people approach divorce as a way of punishing their spouse, understanding that this attitude will not help them to collaborate or compromise over finances. Most clients accept the advice from their family lawyer to make any allegations of unreasonable behaviour or adultery just strong enough to meet the court’s requirement.

However, for those who would rather not bring blame into the process at all, family lawyers are likely to fully support them in choosing not to start the formal divorce proceedings until the Bill becomes law. 

Don’t forget Capital Gains Tax

Depending on their circumstances and when a couple separated waiting for the no fault divorce law to start in April may cause significant and potentially costly problems with Capital Gains Tax.

It’s not a quick fix

Whilst the changes will ease the process of separation, by removing the need for couples to prove each other’s wrongdoing, it is vital for couples to understand that this will not change the process to a ‘quickie divorce’. Between the initial petition being submitted to the divorce being finalised, there will be a mandatory 20 week cooling off period in place for couples to evaluate their decision and give them the option to opt out of the process should they change their mind.

Preparation for a potential influx in spring

The new law should make it easier for couples to find an amicable path to separation and ending their marriage or civil partnership.  It will be interesting to see just how many couples chose to wait until 6^th April to start the divorce process and if  “Divorce Day” will play a little differently in 2022.

In any event, it is important that family lawyers prepare early to deal with increasing divorce enquiries over the coming months. They should take the time to familiarise themselves with incoming changes and all the associated procedures, and it is important that teams play to their strengths and share caseload appropriately.

Donna Hart, Director at The Family Law Company