Coming to the decision to end a marriage is never easy, and navigating the legal complexities of divorce can unfortunately only add to the stress of what is already a challenging situation. However, it is important to take the time to understand what your options are in divorce so that the approach you ultimately choose positively impacts the process, duration, and outcome of your separation. Note: Divorce laws vary by country and region, so the below article focuses on UK law and what you can expect if you are getting divorced under this jurisdiction.
What Is A No-Fault Divorce?
Previously, UK legislation required couples to explain why their marriage had broken down, forcing them to prove one of five ‘facts’:
- Adultery: When one spouse has had sexual relations outside of the marriage.
- Unreasonable Behaviour: This could include harmful behaviours, like neglect, substance abuse, or even emotional or physical abuse, that made staying in the relationship unbearable.
- Desertion: When one spouse has abandoned the other for at least two continuous years without agreement or a valid reason.
- Two Year’s Separation (With Consent): Couples who have lived apart for two years can divorce if both parties agree.
- Five Year’s Separation (Without Consent): If the spouses have been separated for five years, one party can file for divorce even if the other does not consent.
However, in April 2022, the new ‘No Fault Divorce’ legislation came into effect in the UK which removed the need for one spouse to blame the other for the breakdown of their marriage by way of one of the grounds above.
Irretrievable breakdown (of the marriage), can now simply be proved by a simple statement from either spouse. This legislation simplifies the divorce process considerably by avoiding the potentially lengthy litigation involved in one party having to prove to the courts that their cited ground for divorce is valid. It also minimises unnecessary stress and conflict between spouses by focusing on the fact that the relationship simply cannot be salvaged, without assigning any blame for this.
Contested and Uncontested Divorce
Whilst the actual divorce process can no longer be contested by under the new no-fault divorce rules, spouses will still need to make arrangements for any children of the marriage and decide what they are going to do about the matrimonial finances.
The children and financial arrangements can then either be contested (both spouses cannot agree on key issues such as child custody, division of property, or spousal/child maintenance) or uncontested (both spouses agree on the terms of their divorce without the need for the court to intervene).
In the case of the former, the process can become significantly more complex and often requires court intervention to resolve any disputes over ‘who gets what’. Each spouse will typically hire a family law solicitor to represent them in proceedings, and if initial negotiations are unsuccessful, the case may then go to trial where a judge makes the final decision on any contested points. Contested divorces are often lengthy, expensive, highly stressful ,and confrontational, as the process can involve multiple court hearings which require the presentation of evidence and personal information to settle any disagreements.
In contrast, the latter option of uncontested divorce is generally quicker and less costly as spouses avoid the need to pay for any solicitors or court fees by opting for amicable negotiations instead. In such cases, it is common for couples to draft a separation agreement or a divorce judgment outlining their terms of separation, including property division and child arrangements. Note: Even if you are able to pursue this route with your spouse, it is still important to seek legal advice so you can ensure that both parties’ rights are protected, and that the settlement is fair.
Mediation
Another option that divorcing couples can explore is mediation, which involves both spouses working with a neutral third-party mediator to negotiate the terms of their divorce. In these sessions, the mediator helps facilitate productive discussions that allow them to find compromises on any points they are struggling to agree on, without making any decisions for the couple. Mediation is an effective option for many as it can often prevent a case from going to court over minor disagreements, thus making the entire process less adversarial and more cost-effective overall.
The importance of minimizing hostility and conflict between separating partners is something that we at Grayfords strongly believe in. If you are considering divorce, our team of family law solicitors can help guide you through each step of the process with effective legal strategies to fight for you and your family’s best interests, while also providing emotional support alongside our consultants who specialise in mediation, private client law, and therapy. Don’t hesitate to contact us today on 020 7100 6100 and book in your free initial consultation to find out more about how we can help.