Should I Stay or Should I Go?

In these most uncertain of times, a constant in family law remains in that if your marriage has broken down, you will want to get divorced.

For many, once the realisation has sunk in that their marriage is at an end, deciding when to begin the divorce process naturally falls into place.  More often than not, that will mean one party divorcing the other on the basis of their unreasonable behaviour.

For both opposite-sex couples and same-sex couples, unreasonable behaviour was the most common reason for divorce in 2019 (ONS 17/11/20).

Some will regrettably find it all too easy to set down the allegations of behaviour that they find unreasonable.  Indeed, for many, the hardest part of the exercise is in trying to limit the number and nature of the allegations being raised.

For others, try as they might, agreeing to proceed with a petition based on behaviour causes sleepless nights and, counterintuitively, upset.  In circumstances like that, when adultery is not relevant (the other ground on which a divorce petition can proceed sooner rather than later upon a marriage breaking down), the only alternative is to wait two years from the date of separation, and then proceed with a petition based on two years’ separation with consent.  However, for reasons that fall outside of the scope of this article, doing this could be prejudicial to the ultimate resolution of matters, and it also builds in an element of natural delay prior to matters concluding, even more so if the parties have not yet separated.

Until recently it has always been thus.  However, couples now have a new option open to them.  As commented on previously, the Divorce, Dissolution and Separation Act 2020, received Royal Assent in June last year, and the Ministry of Justice (MOJ) is working towards autumn this year for implementation.  In short, this will remove the need for a party to apportion blame, and therefore no longer need to allege adultery or behaviour.  It will also allow for joint applications to be made for divorce, whilst also removing the ability of a respondent to defend a divorce.

The new divorce process will not, though, alter in any way the law with regards to financial provision on the breakdown of a marriage, or impact on how disputes over the parties’ children are dealt with.

The question is therefore should you proceed with a divorce now, or should you wait until the autumn.

The main issue is that, whilst the MOJ are working towards implementation in autumn this year, it is not a given that those timeframes will be met.

In times of uncertainty, the remaining constant which is available immediately is to proceed with a divorce on either behaviour or adultery (or indeed two years’ separation with consent if relevant).

Even with a fair wind, a divorce can take six months to conclude and that is without factoring in how to deal with the matrimonial finances.  As such, more realistic timeframes from start to finish, to include dealing with financial matters, may be between 6 and 12 months from the date of a divorce petition being issued by the court.  Our team of family law experts at Clarke & Son are on hand to advise you on the most appropriate course of action in light of your circumstances.  For an initial free-of-charge consultation, and in confidence, please contact our Head of Family, Mark Chapman.

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