Taking the first step towards divorce can be daunting in normal circumstances, and with the additional pressure of the government-imposed lockdown we have been asked by many clients whether it will be possible or advisable to bring proceedings now.
This is a very fair question. Services available from most public bodies have been vastly reduced, and the family courts are not immune: they have had to radically reduce the number of courts open presently and try to implement new technology-based solutions to deal with the chaos brought about by Covid-19.
The important news is that despite the changes to the courts and their administration, it is still possible to initiate a divorce. Happily, the courts were already in the process of implementing online divorce and this has proved very successful. However, do please bear in mind that if you and your spouse are in lockdown together and your relationship is already strained, divorce proceedings may well heighten tensions. It may therefore be possible but unwise to issue a petition at this time and you should carefully consider the position for your family lawyer, and the options and protections available to you.
Family law solicitors have had to adjust quickly to the new restrictions, and we offer telephone/video consultations to new clients so they can get assistance as and when they require. Zoom and Skype meetings are becoming commonplace and have proved a very effective means of keeping the process going for clients in need at this very difficult time.
Under our current law, in England & Wales there is only one ground for divorce which is that your marriage has irretrievably broken down. The government are looking at moving towards a no-fault divorce in the future and the second reading of the Divorce Bill took place in the House of Commons on 29 April. The new laws will simplify the divorce process and make it almost impossible to defend divorces, which can go through to a conditional order 20 weeks after filing the paperwork, even when parties continue to cohabit (with a further 6 week wait before the final order is made).
Attempts have, however, been made to change the laws before and have not succeeded. Hopes are high this time: it may even become law in the next few months. Until then the position remains largely as it has been for more than four decades. Divorce petitions require you to set out one of five factors in support of your assertion that the marriage has irretrievably broken down. The five factors are as follows:
- Unreasonable behaviour
- 2 years separation with consent of the respondent
- 5 years separation, no consent required from the respondent
It is important to bear in mind that in some cases, the Court will accept that parties are “separated” while still living under the same roof, if you can show you occupy separate “households”. This is technical, and your family law solicitor will be able to advise you further.
Once the divorce petition has been completed and filed at court or online, it is processed by the court staff. In the current circumstances it is especially difficult to say how long the processing might take, as the court service has been severely impacted by covid-19. Once issued, the divorce papers will be sent to your spouse, who then has 7 days in which to respond. The Respondent spouse can file their response online so the process should not be hampered or delayed by the current stay at home guidance, and a decree nisi can then be sought in the usual way.
Decree absolute of divorce should generally not be obtained until after you have agreed a financial settlement with your spouse and obtained a consent order from the court reflecting the agreed terms. Again, you should seek advice from a family law solicitor on this, and before applying for the decree absolute. Problems can arise if finances are not addressed before the decree absolute is obtained. It is important to take advice when you need it, and this is one of those times.
As we do not know how long this lockdown will last, it is impossible to say if a divorce could be finalised during this time. However, the simple point is that it is possible to get the process started, you do not have to delay if you do not want to. The mechanics of how you choose to deal with it will of course have regard to your particular circumstances and may need to be handled with some delicacy.
We remain open for business and a member of our family law team would be happy to discuss matters with you.