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What 2022 means for divorces in England and Wales

With new legislation determining the end of marriages set to come into law in April, individuals and their lawyers may be putting their plans on hold for a few months and taking advantage of the biggest shake up of divorce law since 1973.
Published 22 January
5 mins

For many people in the UK, or with financial affairs linked to the country, April is an important month as it marks the end of the tax year. However, in 2022, any financial filings may come under even more scrutiny as the Divorce, Dissolution and Separation Bill finally comes into effect. I say “finally” as its introduction had previously been slated for autumn 2021, having received royal assent in June 2020. This was then postponed to 6 April 2022 due to the pandemic and the desire to move all divorce filings online via the HM Courts & Tribunal Service.

It is a significant piece of legislation and the changes include the language used. The terms decree nisi and decree absolute are modernised to become a ‘conditional order of divorce’ and a ‘final order of divorce’ respectively, while the ‘petitioner’ becomes the ‘applicant’.

The new law will bring in a new approach:

The removal of fault

An application can simply state that the marriage has irretrievably broken down. It seeks to end the ‘blame game’, which not only added to the stress and heartache for the couples involved, but also resulted in family and friends stigmatising the person ‘at fault’ – sentiments that also spilled over into negotiations about financial settlements and childcare.

An option for a joint application

While this may appear to be a technical formality, the move should also help couples split more amicably as no fault is attributed through the physical action of filing the petition.

Applications cannot be contested

Even if one spouse refuses, if the other no longer wants to be in the marriage, it is over.

Process changes

The new minimum time period between submitting the application and receiving the conditional order, increases from 6 weeks and 1 day to 20 weeks and aims to allow both parties time to agree the practical requirements pertaining to the separation. Once that timeline is over and a conditional order is granted by the courts, there is then an additional period of 6 weeks before a final order is granted and the marriage or civil partnership is severed.

Discussions for reform had been rumbling for some time, but it was 2018, with the case of Owens v Owens, that finally signalled that change really was needed. Originally filing for divorce in 2015, Tini Owens had fought her estranged 80-year-old husband, Hugh, for almost three years when she lost her Supreme Court appeal. Hugh, after 40 years of marriage, had wanted to stay married given (in his view) they only had a “few years” left together.

The law in 2018 demanded a full five years spent separated from her husband, and given she was not willing to cite adultery, desertion or “unreasonable behaviour” to reduce this to two years, she was unable to expedite the process.

Tini was eventually granted a divorce under the old regime, but she was not alone in her desire to see change given some 18% of opposite sex couples divorced in 2019 on the basis of five years of separation (the latest period for which figures have been published).

And although the Office for National Statistics stated that the 2019 increase in divorces was due to administration issues in 2018 (meaning many cases were logged as completed in 2019), there is lots of evidence that the pandemic has prompted many couples to reconsider remaining married from Waltham to Wuhan.

Should you wait?

If you have been contemplating divorce for some time and both parties are ready to act, then it would make sense to file now, as the HM Courts & Tribunal Service has acknowledged the current backlog of cases. This backlog remains despite the efforts of the government, e.g. in March 2021 giving £500 to 2,000 couples to encourage the take-up of mediation, a scheme which research has suggested enables 70% of those using the services to resolve their issues outside of the courtroom.

However, if your spouse or civil partner (given the new bill also encompasses civil partnerships) is likely to contest the divorce, you may want to wait and file under the new bill.

And although the new bill will bring in a longer ‘cooling off’ period, it is worth noting that a technical timeline is not the same as a real one. Yes 20 weeks is longer than 6, but in practice divorces took much longer to finally be resolved than even a 20-week period. For example, although author and TV celebrity David Walliams received his decree absolute in the shortest possible time, it took a further year before a financial settlement was agreed.

We would also recommend that you seek financial advice at the same time as addressing the legalities. Although courts in England and Wales are famous for splitting assets 50:50, we find that the complexities surrounding pensions, as an example, mean these assets may be left outside of the discussions. In addition, many find the sum of money they receive on divorce daunting – particularly for those who have historically been the party who has shouldered more of the family duties, rather than the finances.

We can help by providing support for both parties, by mapping out your future finances following divorce, as well as helping you understand the possible implications of the settlement when it comes to taxation.

Clients of Nedbank Private Wealth can get in touch with their private banker directly to understand how wealth planning can help them achieve their financial goals and objectives, or call +44 (0)1624 645000 to speak to our client services team.

 

If you would like to find out more about how we can help you with wealth planning support, or more specifically support in planning your retirement, please contact us on the same number as above, or complete the contact us form using the link below.

Any examples of investments and structures used are for illustrative purposes only. The inclusion does not constitute an invitation or inducement to buy any financial investment or service. None of the content constitutes advice or a personal recommendation. Individuals should seek professional advice, based on their jurisdiction and personal circumstances, before making any financial decision.

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