**Updated 3rd July 2020**
Legislation to bring about a no-fault divorce option, passed into law on 25th June 2020. However, couples will not be able to choose this option until probably the autumn of next year (2021). This is because time is needed for the implementation phase where necessary changes needed to be made, for example, to legal divorce forms.
A ‘no fault’ divorce is one in which the partner within a marriage who is asking for the divorce does not have to prove that the other partner did something wrong.
Why were the reforms proposed?
The vast majority of family lawyers believed the laws surrounding divorce should be changed, to allow couples to separate without having to apportion blame to each other and without having to wait at least two years before they can divorce.
Divorce is difficult enough without either party being blamed for causing the end of a relationship, particularly when couples have simply grown apart. The legal requirement (which has been the case to date) to assign blame can make it challenging for couples to reach an amicable agreement and can also be a distraction for legal professionals whose focus is to resolve more important issues in a constructive way.
Prior to this recent change in the law, the most recent legislation governing divorce was approaching 50 years old. It was hugely influenced by the first divorce laws which were designed to reflect the society of the time and the disapproval of the breakdown of a marriage.
No one could suggest that society has not significantly changed in this time and that what was once considered taboo or frowned upon is no longer the case.
What does this legal reform address?
The Law does take time to catch up with society and prevailing attitudes. The Divorce, Dissolution and Separation Act brings divorce law up to date through:
- replacing the requirement to prove either a conduct or separation ‘fact’ with a requirement to file a statement of irretrievable breakdown of the marriage (couples can opt to make this a joint statement)
- removing the possibility of contesting the decision to divorce as a statement will be conclusive evidence that the marriage has broken down irretrievably
- introducing a new minimum period of 20 weeks from the start of proceedings to conditional order stage
The overwhelming majority of family law professionals welcome the new law. Others are of the view that making divorce ‘easier’ will undermine the institution of marriage and lead to an increase in divorce rates.
Eradicate the blame game
From a family law perspective and for individuals who have come to the conclusion it is better to divorce, to be able to do so without having to wait and apportion blame makes sense. It is also relevant and impacts upon the wider family – particularly any children the two people may have.
The emotional impact of divorce is a huge challenge for many and it is rarely taken lightly, particularly where children are involved. On occasions, urgent action is required to assist individuals in difficulty and adding barriers with the assumption ‘marriage’ equals ‘better’, is unhelpful.
Blame and fault as to the end of a marriage is now almost entirely irrelevant when resolving the financial issues which need to be addressed in the divorce. It’s sometimes difficult to remember this point when blame is actively required to start the process.
The importance of considering all your assets in a divorce settlement
Going through a divorce puts many families under increased strain, both financially and emotionally. As couples find themselves under increased emotional stress, they often fail to fully consider the financial impact of their separation and as a result, decisions that are made can have a long-lasting impact on the opportunity for financial security in the future.
Now that legal reform has passed into law, this offers hope for couples who have decided to separate that they can to do so with less conflict and stress, it will become more important than ever to resist the temptation to make rushed decisions about major financial assets, most notably pension arrangements, which can turn out to be detrimental - more often negatively affecting women rather than men.
Pension funds are key to establishing a ‘fair share’
Assets held in pension funds are of vital importance when calculating a ‘fair share’ between couples. These funds are often the second most significant assets owned in a relationship after the family home - and can sometimes be the largest. And yet, they are all too often overlooked when it comes to establishing a financial settlement. Often couples put greater focus on splitting tangible assets, like property, with many under-estimating the impact of mismanaging the split of a pension in divorce.
The law gives the courts wide powers to vary on divorce the way in which pension funds are held by the parties so that fairness can be achieved. This may well involve a varying of the shares held by each party in the capital value of the funds, as well as how the income derived from the funds will be distributed.
The importance of seeking independent financial advice
It is alarming that very few people actively seek specialist independent financial advice on divorce. The impact of this is that many people are missing out on vital pension benefits, with the risk more likely to impact women than men given they often have a less sizeable pension of their own.
If you are going through a divorce, make sure you seek professional advice, both legal and financial as the importance in planning your finances for life after your divorce has been completed cannot be over-emphasized.
At Tees we combine independent financial advice with expert legal advice so you get a fully-joined up view. Our independent financial advisers are experienced in dealing with pensions as part of advising on the settlement of the overall financial arrangements on divorce.
Sometimes the pension arrangements involved in divorce settlements can be complex depending on your circumstances and that’s where our experts can provide you with guidance to ensure that your interests are fully protected.
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This material is intended to be for information purposes only and is not intended as an offer or solicitation for the purchase or sale of any financial instrument.
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