The divorce saga: navigating the waiting game
2 February 2024
In a world that moves at the speed of a swipe, divorce proceedings seem to be caught in a time warp. The glacial pace of court processing has become an unexpected antagonist, leaving couples in limbo and finances in stalemate. The real battle often lies with the court’s ability to untie the knot, with months (sometimes years) spent in a legal labyrinth draining both emotional reserves and bank accounts.
The divorce waiting room
In April 2022, the divorce landscape changed and moved away from fault-based petitions to ‘no-fault’ divorce applications. The change in terminology and move away from antagonistic particulars was heralded, but a new challenge has arisen – delay.
Currently, it can take the Court 3 – 4 weeks to issue an application, once received. After issuing, the application is served on the second applicant (if a joint process) or respondent (if sole), and a 20-week (rather patronising named) ‘cooling-off’ period begins before the divorce can be advanced to the next stage. The intention behind this 20-week period, is to allow people to reconsider whether or not they wish to proceed with unravelling the marriage and to withdraw their original application. However, in practice, divorce applications are very rarely withdrawn after they are submitted. As practitioners, we find that most people take the act of lodging the divorce application very seriously, and is reflective of their absolute belief that the marriage has come to an end.
After expiry of the ‘cooling-off’ period, the applicant can advance the divorce and apply to the Conditional Order stage. Current court delays mean that this application can take 8 – 9 weeks for the court to process.
Once the Conditional Order is pronounced, a further mandatory timeline applies of 6 weeks and 1 day before the divorce can be advanced to the final stage of Final Order. Timelines for the Court to process these applications are a bit more optimistic, at worst taking a week for the Court to action.
All in all, just on the divorce side, you are looking at 40 weeks to divorce (or 9.2 months), and that is assuming you do not run into legal complexities like needing to prove effective service or meeting international service requirements, etc.
The administrative delays are getting worse and worse as more people are divorcing under the new system.
However, as focus and funding are shifting onto meeting the demand for the new divorce system, there are now appalling delays for those who fall outside of the new divorce law and are trying to advance their divorce under the old law (started prior to April 2022). This is largely because these older petitions are processed entirely out of one court centre in Bury St Edmunds and are only dealt with through physical paper correspondence (with all the limitations of old-styled divorce, such as the requirement for wet signatures). One cannot even call for a proper update because it is all on paper and so the digital updates that a call centre can see are extremely minimal. Email correspondence is not processed by court administrators any quicker, with the current delays in a court administrator reading correspondence being several weeks – sometimes months. Indeed, at the time of this article, Bury informs us it takes between 6 – 9 weeks for the correspondence to even be read.
Whilst parties can apply to shorten the timelines under new ‘no fault’ divorce, it takes time for the court to deal with an application for expedition and the court only permits these applications in extreme circumstances (such as for medical reasons). However, while you can apply to expedite the 20-week and 6-week mandatory timelines between Application, Conditional Order, and Final Order, you cannot expedite the admin processes. For those applicants with terminal illnesses, and because their spouses have an extant claim against their estate, this causes significant hardship and can create inheritance difficulties if the divorce cannot be finalised in time.
There are many reasons why parties wish to advance a divorce expeditiously, but the following reasons are most commonly cited:
- Need for a financial clean break, which can only be achieved when an order is lodged for sealing after the Conditional Order stage (although it does take around four weeks for the court to review and approve financial settlement agreements…).
This is commonly where one party is due post-separation assets, like inheritance, or simply wishes to cut financial ties because they experience financial abuse or coercive control at the hands of their spouse.
- Wanting to implement the terms of a financial agreement at the soonest possibility without facing risk of the other spouse coming back for a ‘second bite of the cherry’. For complete security, this requires a binding court order, which can only be provided at the Conditional Order stage.
A common example is where one party agrees to transfer property to the other, in return for a lump sum or in lieu of them retaining their pension. Implementing these material terms of an agreement is very risky without the security of a binding court order (although see below).
However, you cannot implement an agreement to share a spouse’s pension without a binding court order and final divorce order.
- Wanting to remarry, as you cannot do so without obtaining your Final Order in the divorce.
So, what’s the game plan for those stuck in the waiting room of the divorce courts?
- Acting proactively
Do not delay in submitting your application.
As practitioners, we find that many couples approach us having already been through mediation to discuss financial settlement but have not yet applied for divorce. These couples are then surprised to find we cannot ask the court to convert their agreement into a binding order for at least six months.
It is always best to put in your application for divorce sooner rather than later if you have decided to separate.
2. Separation agreements
If you have reached an agreement and are facing delay in converting this into a binding order, you can enter into a settlement agreement. This is essential where you intend to implement the terms of your agreement, or if you are due to receive any substantial post-separation assets.
Separation agreements are not strictly binding to the family court, and they can be departed from where it is fair to do so. However, in practice, if the separation agreement was entered into with legal advice, financial disclosure, and no duress, they are increasingly difficult to depart from.
Nevertheless, as above, a separation agreement is insufficient to assist with pension sharing – this, inescapably, requires a final divorce order and sealed financial order.
The other downside to a separation agreement is that they are not directly enforceable by the family court – if a party attempts to resile from the terms of a separation agreement, the other will need to apply to court under the normal contested financial application process which (itself) is fraught with delays.
3. Thinking creatively about settlement
To avoid the issue of waiting for final orders to implement a pension share, it may be worth taking financial advice from a pension on divorce expert to explore whether it is possible to offset the pension claim against liquid assets i.e. to take more of the other assets in lieu of a pension share, and use these to purchase an annuity to provide you with retirement funds (either now or in the future). However, this necessitates financial advice to ensure that you are not placing yourself under financial strain.
In a world where time is a precious commodity, the lengthy process is an unwelcome adversary. However, by taking proactive measures to protect oneself financially, emotionally and strategically, individuals can navigate the waiting game effectively and move on to the next chapter of their life.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2024.