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23.09.22

Is divorce law finally fit for purpose?

Despite what some may think, one of the most important tasks for a family solicitor is to try and help reduce tensions during a divorce. Prior to 6^th April 2022 the law did not always make that task easy.

To obtain a divorce an applicant needs to demonstrate that their marriage has irretrievably broken down. Prior to the 6^th April 2022 the Matrimonial Causes Act 1973 said that a marriage had irretrievably broken if one of the following had happened:

1. The other party had committed adultery
2. The other party has behaved in such a way the applicant cannot reasonably be expected to live with them
3. The other party had deserted the applicant for at least 2 years
4. The parties had separated for at least two years, and both consented to the divorce
5. Five years of separation, however, the consent of the other party is not needed

Prior to the 6^th April 2022 a solicitor would often find themselves advising an upset client that if they didn’t want to wait 2 years (possibly 5 years) for a divorce they needed to think of examples when their spouse had behaved unreasonably. Alternatively, a solicitor might need to advise a client who had received a letter from another solicitor accusing the client of behaving unreasonably. The law seemed to encourage the tensions to increase between the parties.

If the divorcing couple had children, it was even more regrettable that the law seemed to inspire tensions.

On the 25^th June 2020 the Divorce, Dissolution and Separation Act 2020 received Royal assent. The Act came into force on the 6^th April 2022.

Section 1 of the Divorce, Dissolution and Separation Act 2020 states the following:

(1) Subject to section 3, either or both parties to a marriage may apply to the court for an order (a “divorce order”) which dissolves the marriage on the ground that the marriage has broken down irretrievably.

(2) An application under subsection (1) must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably.

(3) The court dealing with an application under subsection (1) must—

(a) take the statement to be conclusive evidence that the marriage has broken down irretrievably, and

(b) make a divorce order.

Since the 6^th April 2022 an applicant can prove that their marriage has irretrievably down by making a statement to that effect to the court. Interestingly the law now allows both parties to the marriage to jointly apply for a divorce. For several years solicitors have campaigned for ‘no fault divorce’. It is hoped that divorce law will now be fit for purpose and help reduce tensions.

At SHU Law our priority is to provide the best advice to our client’s.  When advising on family law matters, we always try to seek agreement and reduce tensions where possible. Although we advice clients on divorce, we are unable to advise on the division of matrimonial assets.

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