As of today, new divorce rules come into force. This is the biggest reform of divorce laws for fifty years. From now on, there is no need to allocate blame or to have been separated for at least two years (five years if there is no agreement) to bring a marriage to an end.
This is a huge shift in the approach to divorce, which reflects the campaign made by family practitioners over many years to reduce acrimony in proceedings relating to families.
The aim of the new no fault divorce law change is to simplify the proceedings and to help couples avoid unnecessary ill will and bitterness at a time when emotions will be running high. The previous legal requirement to assign blame for a divorce made it hard for couples to reach an amicable agreement and often a divorce petition could fuel the flames of resentment and hurt. Now at last, divorce can be granted without blame being attributed and these new laws will allow couples to truly ‘work together’ (albeit separately) for the benefit of their children.
Some may be concerned at not being able to raise the issue of unreasonable behaviour, as they may feel it could assist them in obtaining a more favourable financial settlement. In reality however, behaviour very rarely has any impact on a financial outcome.
From now, instead of alleging unreasonable behaviour or adultery as a ground for divorce, the only detail that needs to be stated is that there is an ‘irretrievable breakdown’ in the marriage. An application for divorce (no longer a ‘petition’) can either be filed on a sole application or a joint application. Once the divorce application has been filed online, then within twenty-eight days, the court will serve the respondent (or both parties if it is a joint application) via email. There will then be a fourteen-day period within which an acknowledgement of service needs to be filed. The application for a conditional order of divorce (what was the decree nisi) can only be made after a period of 20 weeks has elapsed from the date the application for a divorce was issued, and as long as the divorce is not contested, then the conditional order will be granted.
There is therefore a built-in period of reflection before the divorce can be progressed. Whilst there is some talk as to the effect of this slowing down the process of divorce, the reality is that divorce proceedings are generally not finalised until such time as financial matters are agreed and it is therefore unlikely that the time taken for a divorce to be finalised will in fact be longer than under the previous system. Once the conditional order of divorce has been granted, then after six weeks, an application can be made for the final divorce order. If the application is made by one rather than both parties, then fourteen days’ notice of the intention to apply must be given.
One issue that does not appear to have been dealt with by the new divorce process, is the issue of the costs of the divorce. Under the old system, it was usual for a costs order to be made if the petition was granted on the grounds of unreasonable behaviour or adultery. Under the new system, the issue of costs has not been addressed. It would however be considered unlikely that costs orders will be pursued rather than agreed under the no-fault regime.
One issue that may arise under a joint application for divorce, is that a joint applicant may withdraw from the process at which point, it may be necessary to start the entire process all over again.
A significant change to the process is that there are now only limited grounds when it is possible to contest a divorce, including on the basis of jurisdiction. This means that contested divorces will be few and far between.
As in the previous divorce system, the no fault divorce process will not automatically end the financial commitments of a couple to one another, and it is vitally important that finances are dealt with at the same time as a divorce.
All divorce applications will now have to be filed online and therefore postal delays will be avoided. Online divorce has been available now for some time and the process has been swift and efficient.
We at Wendy Hopkins Family Law Practice welcome this long-awaited change and we are ready for the anticipated rush of applications for those who have been waiting for the new law before starting proceedings.
Whatever the issue, it is important to take advice on this area of law before starting proceedings. Contact us to speak with one of our experienced family lawyers.
T: 029 2034 2233
Author: Thea Hughes