Three Important Considerations Before You File For Divorce

Research suggests that many couples in this position are already struggling going into the festive period but understandably want to ‘keep it together’ for the sake of their children during this time. Factors that increase the possibility of divorce or dissolution include the added financial pressure experienced by families in addition to family disagreements and tensions which often arise at this time of year. Here will look at three important factors to consider before you file a divorce petition during or after the 2021/2022 festive period.

1.   Should I wait for the new ‘No-Fault’ divorce legislation to come into force?

With the new Divorce, Dissolution and Separation Act (DDSA) 2020, which will herald a new era of no-fault divorce in England and Wales, expected to come into force in April 2022, one of the newer considerations is whether to wait. While not everyone is in the position to delay filing a divorce petition, there are several advantages afforded by the new no-fault divorce law, which will ultimately make coming to agreements on important matters during separation more amicable for the good of both parties and any children. When the new Act comes into force, the process of divorce will change considerably, as follows:

• one party cannot contest the divorce or dissolution if it is filed by the other person
• neither party needs to blame the other for the breakdown of their marriage or civil partnership
• one party (or both) will now just need to state in writing that the marriage or civil partnership has irretrievably broken down, and no explanation or evidence is needed
• a joint application for divorce or dissolution can be filed where the decision to separate is mutual

Waiting until the new Act comes into force may not be suitable where there is an ongoing risk of harm to the other party or where there is an ongoing financial dispute (e.g. such as concerns that the person in a stronger financial position is trying to conceal or dispose of assets). If you are unsure whether to proceed sooner or wait until the new Act is in place, speak to a family law Solicitor who will be able to advise you.

2.   Would counselling or other forms of non-legal dispute resolution help?

Unless there are circumstances that mean divorce or dissolution is certain (e.g. in cases of domestic violence or coercion and control), it is always recommended to try some form of counselling or dispute resolution outside of the legal system. It may be that you want to divorce, but your partner thinks you can work through matters or vice versa. By waiting until the festive period is over and allowing some time and space, it may be that counselling or mediation will allow you or your partner time to gain a new perspective. There is absolutely no shame in seeking help from a neutral third party who specialises in relationships.

It is estimated that around 150,000 couples go for relationship counselling each year in the UK, and according to the Newcastle Centre for Family Studies, nearly 60% of people who seek help from Relate report that their relationship had improved one year after counselling.  

3.   Have a plan of action

If divorce or dissolution is inevitable, it is advisable to create a clear plan of action for yourself and your children. This will ensure that you take into account all of the important aspects of your lives, what needs to be done for each. We recommend thinking about:

• Seeking legal advice from a family law Solicitor who can help you understand the process, you will need to follow, recommend a strategy to meet your needs and wishes and those of your children, support you through the proceedings, and robustly represent you at each stage.

• Whether you and your children have a safe place to live during the separation period. You will need to understand your rights to reside in the property in which you currently live. Remember, it does not matter if your name is on the deeds of the property or how much you have contributed to the purchase of a house, because you are married (or in a civil partnership), you both are legally entitled to stay in your home until an agreement is reached or the courts make a decision.

• A custody arrangement for your children which is considerate, fair, and amicable. This will greatly reduce the inevitable impact on your children during and after the divorce proceedings.

• How you will ensure you have enough financial resources – you may need to seek an interim financial order, especially if you are the more financially insecure party. An interim financial order will ensure that you have enough money until a final financial order is put in place (this is dependant on the decree nisi being finalised). Your family law Solicitor will explain this to you and apply for an interim order as soon as possible.

Final words

Divorce and dissolution is difficult for any couple, regardless of the situation, but by thinking about the three considerations outlined in this article before you commit to filing a petition, you will put yourself in a stronger overall position. All too often, people rush into filing for divorce without allowing time to reflect, seeking external expertise, and putting a plan of action in place first. This can have devastating consequences for both parties and their children, leading to years of acrimony and discord. All of this can be avoided with a balanced and measured approach where it is appropriate.