No-fault divorce law change highlights pre-nup importance

New law

From the April 6 2022 the Divorce, Dissolution and Separation Act 2020 will come into force and it will no longer be necessary to blame the other party for the breakdown of the marriage. 

The parties can file jointly for divorce for the first time, reflecting the reality that in many divorces both parties accept the marriage has reached an end. Alternatively, either party can file on their own simply stating that the marriage has irretrievably broken down and that will be sufficient to obtain a divorce. 

It will no longer be possible to mount a defence to a divorce petition. Divorce will be inevitable and the new process should leave the parties free to focus upon the key issues and bring the blame-game culture to an end. 

Prepared for the worst

But what else can couples do to ensure that their separation is as straightforward as possible?

Consider a nuptial agreement setting out what is to happen in the event that the marriage breaks down. Pre and post-nuptial agreements are technically not legally binding in England, but following the landmark case of Radmacher v Granatino in 2010 they will in the majority of cases, if properly executed with the benefit of legal advice, be sufficient to persuade a judge that they should be upheld. 

The logic is that if the parties have entered into an agreement of their own free will and they understand the implications, then they should be held to their agreement. 

While many regard a pre-nuptial agreement as wildly unromantic and commercial, they can reduce the time, legal costs and tension when unravelling a marriage. They are also practical; a successful entrepreneur would never put themselves in the position where they could lose 50 per cent of their business without taking any legal advice.  

It is hoped that the new law will prevent the Owens situation arising again and also reduce the tension surrounding divorce. For those parties who have also put in place a pre or post-nuptial agreement, the actual divorce and separation should be dealt with far more smoothly and should become more of a paper exercise.

That said, experience has taught practitioners that if people want to create conflict and have their day in court, they will simply find other ways of doing so. As one door closes, another window will probably open.  

Who should have a pre-nup?

A pre-nuptial agreement (or post-nuptial agreement signed after the marriage) seeks to set out what each of the parties should walk away with should the marriage fail. 

People now tend to marry later in life and so have more assets accumulated prior to marriage that they may wish to exclude from division on divorce.