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No Fault Divorce

No Fault Divorce

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No Fault Divorce has finally been introduced to the UK after years of campaigning by Resolution, the community of family justice professionals, and family lawyers, who welcome the change.

The Divorce, Dissolution and Separation Act was passed by Parliament in 2020. The purpose of the Act is to remove fault from divorce, helping couples to separate and divorce without blaming each other.

I am particularly happy with the change. Removing fault from the divorce petition, the first stage of the divorce process, should reduce the animosity and help divorcing couples have a good divorce.

Family Lawyer Consultation with client

This is certainly how I prefer to act for my clients during a divorce. However, I do acknowledge, and regularly come across situations when it is necessary to take a firmer approach. In any event, I am confident that the Act, once implemented, will reduce conflict allowing couples to agree child-focused arrangements and fair financial settlements.

In my view, the change will also help if you are unsure about starting divorce proceedings. You may consider speaking to a family lawyer and/or initiating the process sooner. This is because you no longer need to worry about what you have said about your spouse in your divorce petition and how they might react. For more information about starting divorce proceedings, read my article here.

The Current Law

Currently there is one ground for divorce, the irretrievable breakdown of the marriage. You must rely on one of the five following facts:

  • Adultery
  • Behaviour
  • Desertion – 2 years
  • 2 years’ separation with consent
  • 5 years’ separation

If you have not been separated for more than 2 years then you are left with two options. If adultery is not applicable then you must rely on behaviour. This is the fact that requires you to blame your spouse. Whilst the types of behaviour can be mild, this can sometimes not be enough to satisfy the court. The recent case of Owens v Owens 2018, where Mrs Owens was not permitted to divorce her husband because her behaviour examples were considered too flimsy, highlighted how out of date the law relating to divorce is.

What does No Fault mean for Divorce?

The Act will make the following changes to the current law:

  • The five facts above will be replaced with a statement to show the irretrievable breakdown
  • The other party will not be able to contest the divorce
  • It will provide an option for a joint application
  • They will remove old fashioned legal terms with plain English
  • Decree Nisi will be called a conditional order and Decree Absolute will be called a final order

When does No Fault Divorce start?

The government is still working on the implementation. It is hoped that you will be able to start your no fault divorce in Autumn 2021 or the beginning of 2022.

Can I have a good divorce before No Fault Divorce starts?

Absolutely! I actively encourage it. Having a good divorce is largely reliant on how you and your spouse approach the divorce. It is also important to engage a divorce lawyer who shares your approach. The current divorce procedure should be used to have a good divorce if you cannot wait until the end of 2021 or the beginning of 2022 to start divorce proceedings.

If you need help with your divorce or if would like to make an initial consultation to speak to me about your divorce.

Do call me on 0203 916 5585 or

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Posted by admin in Divorce
Are pre-nuptial and post-nuptial agreements legally binding and what are the advantages of entering into them?

Are pre-nuptial and post-nuptial agreements legally binding and what are the advantages of entering into them?

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The court uses a three stage test when considering whether to uphold the terms of a pre-nuptial or post-nuptial agreement:

1. The agreement must be freely entered into;
2. Both parties must have a full understanding of the terms of the agreement;
3. It must be fair to hold the parties to this agreement.

If you are considering entering into a pre-nuptial or post-nuptial agreement the following may help with the decision making.

Advantages

1. You will make it clear, and agree at the outset of your marriage, as to whether a particular asset is yours alone, or whether you are happy for it to be shared on any future divorce. This provides certainty and avoids lengthy and costly litigation in the future, which in turn saves you in legal fees.

2. You will provide each other with disclosure of your assets before any agreement is reached, allowing you to agree to protect any assets, such as gifts or property received before the marriage. You can also protect your assets from any of your partner’s debts now or in the future.

3. Entering into an agreement should lead to fewer arguments about your finances and will help you communicate about financial matters during the marriage.

4. The agreement will protect any assets ring-fenced for your children and will set out what will happen to your assets on your death, ensuring that your children are taken care of.

5. If you are concerned that your partner wishes to marry you for your money, the agreement should help to put your mind at rest.

Disadvantages

1. The agreements are not legally binding, however, following the Supreme Court decision in Radmacher v Granatino [2010] UKSC 42, the court will uphold a pre-nuptial agreement and a post-nuptial agreement if it satisfies the three stage test above.

2. The agreement cannot anticipate what will happen in the future. If there is a significant change of circumstances, it is unlikely that the agreement will be upheld by the family court. In an attempt to ensure that the agreement is upheld by the court, the document should be reviewed on a significant change of circumstances, resulting in further legal fees and potential upset, and puts a strain on your relationship.

3. The court is unlikely to uphold an agreement that is no longer in the best interests of any children of the marriage. Any agreement reached will be dependent on the circumstances of the children at the time of the divorce.

What is the difference between a Pre-nuptial and a Post-nuptial agreement?

A pre-nuptial agreement is entered into before the marriage and the post-nuptial agreement is entered into after the marriage. The same rules apply to both documents.

Should I be offended by a pre-nuptial or post-nuptial agreement?

It might come as a bit of a shock but try not to be offended. Think of it as a practical step to be open about your finances and how you will communicate this in your marriage. Always take legal advice from a family lawyer to ensure that the agreement is fair and in your best interests.

What if they will not marry me without the pre-nuptial agreement?

Do not feel forced into signing or entering into an agreement without taking legal advice first as you could end up dismissing some of your legal rights. If the other party insists on the agreement, inform them that you will need to speak to a family solicitor before signing and they must allow you the time to do so. Once you have taken advice you will then be in a position to decide whether entering into the agreement is right for you.

If you would like to know more about pre-nuptial and post-nuptial agreements, or if you are considering entering into one

Family Lawyer in London

Priya Gill Liaudet is a specialist Divorce and Family Lawyer who leads with empathy and deals with family matters constructively

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Posted by admin in Agreements, Divorce