Why ‘Divorce Day’ could be different in 2022

The first working day after Christmas offers the chance of a fresh start, particularly for those in unhappy marriages.

Dubbed “D-Day” (or Divorce Day) by lawyers, the first day back at work after Christmas annually sees record numbers of people start divorce proceedings. In fact, one in five divorced couples say Christmas was the hardest time in their relationship with 10% contacting a lawyer immediately after Christmas.

Interestingly, this year there is much debate around whether the 6th April 2022 should in fact be Divorce Day, as this is when no-fault divorce is scheduled to be implemented.

Why is there a Divorce Day?

There may be several reasons why there is a spike in divorce enquiries on the first working day in January. Namely, the ‘new year, new me; fresh start; pressure-cooker/perfect storm of Christmas tension’ for families who have been struggling in a difficult relationship.

Even if one accepts that there is an annual January “Divorce Day”, there is good reason to think that in 2022 new enquiries and fresh applications for divorce may be pushed back from the first few days of January to the first few days of April.

What will happen when no-fault divorce is introduced?

The introduction of a no fault divorce in April 2022 will mean not having to rely on fault, blame or wrong-doing to legally end a marriage.

As the law currently stands, a petitioner is required to rely on one of the following five facts to prove to the Court that the marriage has irretrievably broken down:

1. Adultery
2. Unreasonable behaviour
3. Two years' separation with consent
4. Five years' separation
5. Desertion

In the event you have not been separated for two years or more, as the law currently stands, a petitioner has to rely on one of the two fault-based facts to present a divorce petition to the Court.  This can cause unnecessary conflict, particularly for older couples who may have been married for some time, who have simply fallen out of love but remain good friends and want to go through the divorce process as amicably and as smoothly as possible

What is a “No Fault” Divorce?

No fault divorce has the potential to bring about significant changes to the divorce process, including less conflict between parties involved.

What benefits will the new law bring, particularly for older spouses?

• Spouses will not have to rely on the fault-based facts of unreasonable behaviour or adultery to get divorced, if they have not been separated for two years or more and can instead get divorced without blame
• There's more chance of the divorce progressing amicably; avoiding a lengthy stressful battle
• There'll be less emotional damage inflicted on children/grandchildren
• It will provide both parties with more time to focus on resolving the financial aspects of their divorce– which is paramount for older couples due to the accumulation of their assets and reaching retirement

What does the new no-fault divorce law propose?

The law will introduce some fundamental improvements, including:

• Irretrievable breakdown of a marriage will no longer be the sole ground for a divorce
• Complex legal jargon will be removed within the divorce process so that it is accessible and easy to understand for couples
• The need for facts and evidence will be replaced with a statement of irretrievable breakdown
• The opportunity to contest the divorce will be removed but there would still be some legal grounds for challenging the divorce if needed
• There will be a choice of a joint application for divorce as well as the option for one party to initiate the process
• A minimum timeframe of 6-months will be introduced from the initial petition stage to final divorce. This means couples will have a period of reflection if they wish to ensure they are making the right decision as well as plenty of time to put plans into place
• Divorce will still not be possible within the first year of marriage

Current divorce legislation can cause conflict between spouses

The current rules can fuel conflict between spouses, by forcing one party to blame the other if they do not want to wait two years or more before obtaining a divorce. This is particularly difficult with older couples that may have been together for a long time, and would like to remain friends following divorce, particularly where children and grandchildren are involved.  The new legislation aims to remove conflict from the process. 

How much does a 'no-fault divorce' cost?

At present it is hard to speculate whether the introduction of the new divorce laws will correspond with a revision of the current court fees. The current court fee is £593 court fee (unless you are eligible for a discount).

Are there reasons not to wait for ‘no-fault divorce’?

If you have a financial consent order as part of your divorce or dissolution, then this can only be submitted to court and made legally binding once you have reached the decree nisi stage. If you must wait six months in addition to waiting for decree nisi you could be waiting a rather long time to finalise both legal processes.

There may also be tax implications if you wait to divorce, for example if you own property and one of you has already moved out.

If we decide to wait for No-Fault divorce, can we protect ourselves if we are just separating?

If you are going to separate before divorcing, then you may wish to consider a separation agreement. A separation agreement is an agreement between you both that sets out what will happen to your finances during your separation and before you have a financial consent order in place.

Unlike a consent order, a separation agreement is not enforceable through the court. Usually, a separation agreement is the basis for a consent order, but if one person changes their mind, it can be used by the other in a court hearing to show what has happened so far and what you agreed was fair at the outset. A judge will then consider a separation agreement if it is properly drawn up, witnessed and was reasonable in the circumstances at the time.

We always advise that a separation agreement is converted into a consent order to make it legally binding.

Final comments

Family lawyers have been campaigning for decades for no-fault divorce to be introduced. It will be interesting to see whether it does prompt a “Divorce Day” in the second quarter of the year rather than (anecdotally) the first month of the year. If you require further information about anything covered in this blog, please contact our Family Department on 01273 956270.