Should you wait for no-fault divorce before filing?
It’s official: after years of cajoling, hinting and, well… harassment from those working within the field of family law, the government has relented, and no-fault divorce will soon be available within the UK.
Following this announcement, Quickie Divorce have been inundated with calls from people wanting to know if they should wait until the law has changed before they file for their divorce. As with most queries we receive, our answers differ depending on the circumstances of the person asking.
Fault-based divorce can still be amicable
We’ve written about how no-fault divorce is already possible when couples have been living separately for more than two years, but a divorce doesn’t have to be acrimonious when unreasonable behaviour or adultery are used.
Whilst critics of fault-based divorce have correctly stated that these grounds often make a divorce more acrimonious and adversely affect the parties involved, particularly children, it’s important to note that using them does not guarantee a difficult divorce.
Usually, these grounds lead to difficulties because one spouse is unwilling to accept that they were responsible for the end of their marriage which, considering that relationships rarely fail exclusively because of one person, seems pretty reasonable. Often, though, couples are able to agree that they will use these grounds and are able to obtain a divorce which, whilst it relied on fault, harmed neither them nor their children.
Why fault-based divorce is misunderstood
People make a number of inaccurate assumptions about fault-based divorce and these are often the cause of discontent and discord.
It is commonly believed, for example, that the reasons that are put forward when unreasonable behaviour or adultery is used will be made public. This is not the case and the UK’s courts are subject to the same data protection laws as any other company, organisation or institution and treat all information that is submitted to them with the utmost confidentiality as a result.
The most common misconception that discourages couples from using this ground concerns the divorce settlement. It is typically assumed that, if a fault-based ground is used to justify the divorce, that the spouse that accepts the blame will be adversely affected when the couple divide their assets. It’s a logical view, but it’s also false.
More often than not, divorce settlements are agreed without the need for the courts to determine who gets what. Even if a couple do need the courts to rule on the division of their finances, properties, pensions etc. the grounds of the divorce do not influence their decision in any way.
What if the divorce is contested?
As well as removing blame from proceedings, reformed divorce laws are also expected to prevent either party from contesting the divorce. In effect, this means that it will no longer be necessary for both spouses to agree to a divorce before the simple, standard procedure can be used.
Currently, a divorce can be obtained without both parties’ consent if the fault-based grounds are used or the couple have been living apart for five years or more. Using the fault-based grounds can be difficult, however, whilst – provided the person applying for the divorce knows where their spouse lives – doing so whilst relying on five-year-separation is significantly easier. They’ll need to spend some extra money on a process server to hand deliver the relevant documents to their spouse but, provided this is done successfully, finalising the divorce will be a straightforward process.
If both parties want the divorce and one is willing to accept the blame, there’s no need to wait for fault to be removed from the divorce process. Similarly, if a couple have been apart for more than two years, they can get a no-fault divorce now if they agree their marriage should come to an end.
The only circumstance under which we would recommend someone wait for changes to be made to the UK’s fault-based divorce laws would be if they’ve been separated for less than five years and one spouse does not agree to a divorce.