Should I wait for the new divorce laws to come in before I start proceedings?
It has been announced that the Divorce, Dissolution and Separation Bill will soon be given royal assent and the resulting new divorce laws will mean that fault based divorces will no longer be necessary. However the changes will not come into effect until Autumn 2021 at the earliest.
There may be couples out there who recognise their relationship has come to an end and are thinking they might want to wait until these new laws are in force before starting divorce proceedings. However there are situations where waiting may cause more unexpected issues.
Under the new laws the sole ground for divorce will remain that the marriage has irretrievably broken down. However, the five “facts” which are currently relied upon to show that the marriage has irretrievably broken down – adultery, behaviour, desertion, two years’ separation with consent or five years’ separation without consent – will no longer be used. Instead, the petitioner will simply have state that the marriage has broken down irretrievably. There will also be the option of a joint application for a divorce, rather than one party divorcing the other.
In other jurisdictions where no fault divorce has previously been introduced there has been some evidence of a spike in divorces immediately after the new law was introduced. It is conceivable that when people are aware the law is going to change, they wait until the new law is introduced before they decide to start the divorce process.
However, it can be a mistake for couples not to seek legal advice until they have been separated for a long time or until the new divorce law has been introduced. There can be good reasons to get on with the divorce immediately rather than wait. For example, as of April 2020 there have been changes to the capital gains tax rules. Previously a spouse would be able to avoid a capital gains tax bill on the transfer or sale of the former matrimonial home provided the transaction took place within 18 months of separation as the spouse who had vacated the property would still be able to rely on primary residence relief. The rules have now changed and the timescale has been reduced from 18 months to 9 months. There are not many divorcing couples who own their own homes who will not fall foul of this change in the rules because it is very difficult to conclude a divorce within nine months. Even once the new divorce law is implemented, couples may still fall foul of this because it generally takes between 6 to 12 months, possibly longer, to resolve financial issues.
It is therefore vitally important that if a marriage breaks down or a couple chooses to separate, each party should seek independent legal advice from a specialist family solicitor at an early stage so that all the options and implications of the decision can be fully explored. At Barker Gotelee our family solicitors can offer a fixed price initial consultation to discuss such matters. Please call 01473 617 317 for more information.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Ipswich Solicitors.