From April 2022 ‘no fault’ divorce will become available in England and Wales. This will mean that a party to a marriage may apply for a divorce without having to show that their spouse has done anything wrong, such as adultery or desertion. However, couples will have to now wait until April 2022 to use this new route – a further delay to its implementation which was expected this Autumn.

Joanna Abrahams, Family and Children Partner at Valemus Law – a leading family lawyer with over 20 years’ experience supporting clients with complicated family matters – has provided advice to those considering whether to wait to start until the new legislation comes into force to start divorce proceedings.

While the changes in divorce law are very welcome, the continued delay to its implementation may see some spouses considering waiting to start divorce proceedings in hope of an easier, or more amicable divorce. This brings to the fore several issues.

The first is in regard to the division of finances.

In divorce proceedings where the couple cannot agree on their finances the court will be asked to make a decision. In this case the assets and earnings of both parties are taken into consideration, going into the matrimonial ‘pot’ for the court to divide. However, that can change once the couple separates. When it comes to the courts deciding on who should get what, one party can argue that anything earned or gained after the separation belongs to them, separate from this combined pot. In some cases these post-separation assets can be substantial.

In this case, if you are the ‘poorer’ party, you may want to hold on a little bit longer, delay proceedings to try to make your financial position stronger. In essence, delaying now may make a big difference to what the courts consider is in that marriage pot when determining the financial settlement.

However, no matter the financial situation, what I would say is that in delaying proceedings you may simply be perpetuating your unhappiness. If you are miserable in a marriage there may be little value in waiting another ten months, because that will feel like a lifetime. Even making the first step in speaking to a solicitor about your options can feel like a huge weight off your shoulders. You will be better informed about any steps you may wish to take having received advice.

Sometimes it takes an awful lot for somebody to make the first move and seek advice.

For many it is jumping into the great unknown and that can come with a great deal of (understandable) anxiety and fear. There is always a reason  for you to convince yourself to stay as you are – it is “ known”. When you delay taking that step you can lose your momentum and end up stuck in a very unhappy situation for much longer. That’s not to say that we should be rushing to divorce, but that delaying taking the first step, until these new rules come in, may see more people suffering in circumstances they would be happier out of.

In any divorce the circumstances are unique. The goal should always be to remain as amicable as possible, and the new ‘no fault’ law makes that a lot easier. However, it is important that whatever the circumstances, each partner seeks advice so that they are in the best position to move forward with their lives.

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