When divorce is nobody’s fault

22 April 2022

As couples take advantage of the new no-fault divorce rules, it’s important they address the financial aspects of their separation.

Ending a marriage may become less acrimonious for some couples following the biggest shake up in divorce law for more than half a century. Implementation of the Divorce, Dissolution and Separation Act (2020) means that married couples can now apply for divorce without having either to wait years or apportion blame for the breakdown of their marriage.
 
Clare Wiseman, Partner and Head of International Family Law with solicitors Irwin Mitchell, says that initially the change is expected to result in an increase of couples applying for divorce, as many have been waiting for the new law to take effect. “Longer term this change will help those who are struggling emotionally to make progress with more important decisions relating to their divorce,” she says.
 
“It’s stressful enough getting divorced without having to declare who is responsible. It can generate bad feeling and set the couple at odds with each other right from the outset.”
 

Unreasonable behaviour 

Until now spouses have had to cite adultery or unreasonable behaviour if they wanted to divorce in less than two years. Those not prepared or unable to accuse their partners of these actions had to live separately – for two years with consent or five years without – before they could start divorce proceedings.
 
In the last 50 years exactly one third of marriages have ended in divorce according to analysis by the personal finance research website Nimblefins1, and unreasonable behaviour has long been the most common cause cited in divorce petitions. In 2019 46.5% of applicants in England and Wales accused their spouses of unreasonable behaviour, compared to just 10.5% citing adultery and 0.5% desertion.
 
The need to apportion blame can increase acrimony and prolong arguments, and solicitors and mediators have campaigned for changes to this part of divorce law for more than 30 years. The tipping point for change came in 2018, when a woman called Tini Owens was refused a divorce form her husband of 40 years by the Supreme Court.
 
The original judge who heard the couple’s case found the marriage had broken down, but the reasons cited by Mrs Owens were "flimsy and exaggerated”. The Supreme Court reluctantly supported that decision: Supreme Court president Lady Hale said she found the case "very troubling" but it was not for judges to "change the law".
 
Wiseman says: “After that decision we were having to tell clients that we were not sure that they had provided enough cause for the court to grant the divorce – that the unreasonable behaviour they described was not enough.”

Co-operation 

The new  legislation means couples can now choose to apply for a divorce together through a ‘joint application', and they no longer have to provide a reason or justification for the irretrievable breakdown of their marriage. The process will take a minimum of six months from the start to a final order (previously Decree Absolute) being made.

The Government believes this is sufficient time for couples – those who are amicable at least – to access support such as counselling and mediation if needed, and to make decisions about their finances and children.

 

Impact on finances

 For some people divorce can see them managing money for the first time in their lives, which can seem daunting, so it’s important that they get the right support and advice.
 
Decisions about finances and especially about children are handled separately from the divorce itself, but Wiseman says it is important to apply for a financial consent order at the same time as the divorce. This, she says, stops an ex-spouse seeking further financial support later, especially if the other makes or inherits further wealth.
 
She fears that the fact that couples can now apply online for a divorce without input from lawyers will mean some people fail to address important financial aspects and leave them with an unfair and insufficient proportion of the family wealth.
 
Eleanor Ingilby, Senior Portfolio Manager for Sanlam, agrees that it is vital to seek expert financial advice on the splitting of finances. Things to consider include bank and savings accounts, pensions, joint insurance policies, any outstanding debt and the family home.
 
She adds that the splitting of finances can provide control to some people for the first time in their lives, and that it can be an opportunity to re-evaluate financial objectives. “You should look at it as a complete clean slate,” she says.
 
Divorcing couples should also remember to write new wills, as divorce does not revoke an existing will and failure to put a new one in place will jeopardise any inheritances planned for the rest of the family and mean that new partners or dependents are not provided for.


For more information

We’re here to help. If you are concerned about a divorce-related issues, contact us today and our experts will be able to advise you on the best course of action.


Eleanor Ingilby
Head of Harrogate office

 

Please navigate to a service or product page and add the document to your brochure to continue.

Back
Name your brochure
Your details
Thank you!

Your brochure is on its way.

Brochure Confirmation - your brochure is on its way.

We hope you find this useful.

The value of investments and any income from them can fall and you may get back less than you invested.