Often when people come to mediation, the issues or events which have caused one or both to consider separation are still very new and raw. One person may feel more certain that the relationship is at an end than their partner. It is likely that both will experience feelings of denial, anger, bargaining and, for some, extreme lows.
Occasionally one of you is further down the line than the other, has accepted that the relationship is over and feels you have moved on. In the same way, your children will also be experiencing similar feelings and it is important that you are aware and alive to this. It is apparent therefore that for some people, the first issue that they wish to discuss is how and when to formally separate.
Prior to 6th April 2022, people wishing to divorce had to prove to the court that their marriage had irretrievably broken down and cite one of the 5 facts as being relevant to the ending of the marriage. These were unreasonable behaviour, adultery, 2 years’ separation with consent, 5 years’ separation, or desertion. This often led to one party blaming the other for past actions and invariably created additional stress, conflict and added expense in what is already a very challenging time for two people.
The divorce process has now changed. This is something that has been on the cards for several years and, for many in favour of it, has been a long time coming. The requirement to cite one of the 5 facts has gone and all element of fault removed. Couples are now able to get divorced without having to blame each other. The hope is that this new system will enable people to get divorced and move forward with their lives in a more amicable way. The new law will also remove the ability for the application to be contested (aside from on the grounds of the validity of the marriage).
The new law allows both parties to make a joint application. It is hoped this will remove the acrimony, hostility and mistrust which often set in under the old law.
The taking on of these roles previously for many people created an atmosphere of battle and a sense of taking sides (often with legal teams in each corner). Joint applications should reduce some of these concerns.
In order to allay fears that the new divorce law will make it far too simple and easy to get divorced, a minimum timeframe of 20 weeks has been introduced. The idea is that this period will allow couples to take time to reflect on their circumstances and possibly explore other avenues which may save their marriage before committing to the divorce. The process will still involve two distinct stages (previously called Decree Nisi and Decree Absolute), but the names will change. The Decree Nisi will become a Conditional Order of Divorce, and the Decree Absolute the Final Order of Divorce. The current requirement of waiting 6 weeks and 1 day between the Conditional Order and Final Order will remain in place.
One of the criticisms of the old system was the use of and reliance on a number of archaic and confusing legal terms. To remedy this, the new divorce process will remove words such as ‘Petitioner’ – replaced by ‘Applicant’; ‘Decree Nisi’ – replaced by ‘Conditional Order of Divorce’; and ‘Decree Absolute’ – replaced by ‘Final Order of Divorce’. It is hoped that this modernisation of the language will make the whole system easier for people to understand, and will demystify what has been a tricky and outdated process to navigate.
Family law practitioners are hoping that the new law provides people with a process for ending their marriage which is kinder, easier to understand, and more encouraging of collaborative decision-making. There is now a far greater need for separating people to reach decisions on their child arrangements and financial arrangements in an amicable and respectful way. There is an expectation that the new process will allow this. Without the need for blame or finger-pointing, separating people should find it easier to untangle their finances and continued to co-parent going forward.
It is likely that both will experience feelings of denial, anger, bargaining and, for some, extreme lows.