No-fault divorce – How will financial settlements be affected
The Divorce, Dissolution and Separation Act 2020 comes into effect on 6 April 2022 and has been hailed as the biggest shake-up in divorce law since 1969.
The new rules introduce an entirely new ‘no-fault’ basis for obtaining a divorce. This will do away with the five current grounds required to launch a petition and allow a single party to begin divorce proceedings without the permission of their spouse if they believe the marriage has irretrievably broken down.
The new law provides a 26-week period between the start of divorce proceedings and the final divorce order being made. However, some divorces may take longer because of procedural steps and court delays.
The removal of the five grounds for divorce means that some couples will no longer have to live apart for a substantial time before launching a divorce petition.
While most of the legal profession support this move, as it is intended to reduce animosity and conflict, there are concerns that extreme forms of unreasonable behaviour may not be taken into account as part of a claim for an improved financial settlement.
Whether this will be the case is yet to be tested and some would argue that this dissatisfaction may, instead, manifest itself in an increase in conduct allegations in financial remedy proceedings.
Commenting on the incoming law, Roger Isaacs, Forensic Partner at Milsted Langdon, said: “Fault and extreme unreasonable behaviour has played a role in determining financial remedies only in the most extreme cases in the past, so many within the profession feel that this shift shouldn’t have a monumental impact on rulings.
“Judges will continue to base their findings on the facts of each case, particularly as there is no statutory definition of conduct.”
Roger said that few cases meet the test set out in the Matrimonial Causes Act 1973 which refers to ‘conduct which it would be inequitable to disregard’.
“The legal profession therefore overwhelmingly sees no-fault divorce as a positive step for separating couples” added Roger.
“Judges are likely to remain keen to avoid getting dragged into arguments about conduct in financial dispute hearings and it is therefore unlikely that we will see an appreciable change in the approach to money-related hearings that seek to bring conduct into the frame where it would not have been argued before the advent of No-Fault divorce.”
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