No-fault divorce and estate planning

 29 March 2022
No-fault divorce and estate planning

The biggest change in divorce law for decades is happening on 6th April 2022. The new system allows couples to separate without needing to blame anyone for the breakdown of the marriage.

No-fault divorce simply requires a statement of irretrievable breakdown, with the aim that this will take some of the emotional heat out of divorce and allow couples to split more amicably. Couples can also jointly apply for a divorce if they wish.

Online divorce isn’t quicker

Divorce applications can now be filed online, but this doesn’t mean the new system offers a fast online divorce. It isn’t necessarily easier, especially if the divorce is complicated, or any quicker - in fact, it takes a minimum of 26 weeks.

Furthermore, divorcing couples will still need to make key decisions and agreements just as before, including:

  • Agreeing a financial settlement
  • Setting child maintenance payments
  • Making child arrangements as co-parents
  • Deciding what happens to the family home
  • What happens to a jointly owned business

The waiting game

Family lawyers report that some clients have been holding off getting divorced until the new law is in place, so they can separate with less acrimony. Others may decide to divorce due to the media attention on the new system. Either way, there is expected to be a surge in divorce applications around the time of the new system.

So, why are we mentioning this in respect to estate planning? Simply to remind those with a current will and especially parents that despite the change in the law, bloodline planning is still required to ring-fence inheritances for your family, including adult children and grandchildren.

Surprise, surprise

For some, the decision of their spouse to get a divorce may come as a bolt out of the blue. They - and you - may simply have not seen it coming. So, you might need to adjust your bloodline planning relatively quickly, as despite the new 20 week waiting period, you may not want a soon-to-be-ex-spouse potentially benefitting before the divorce is finalised.

Equally, if you have Lasting Power of Attorneys (LPAs) in place, you may not want your adult child’s ex-spouse to be an attorney, and need to remove them and/or appoint a new attorney.

Trusts and will clarity statements

There are various ways to secure inheritances for your family which should be both put in place and written into your will. For example, you might decide to set up a Trust for your grandchildren or make gifts during your lifetime to help your family out. Whatever measures you make should be written into your will. If you decide to gift money, you can explain how much has been already given and your reasons for doing so in a will clarity statement.

One of the new divorce changes takes away the right to contest a divorce. (In practice, few actually did.) In contrast, more and more people are contesting a will. A will clarity statement can help make your wishes and arrangements made clear to your executor/s and your beneficiaries.

Emotional support for those divorcing

By removing the need to allocate blame, the new divorce process almost removes the opportunity for an aggrieved spouse to tell their side of the marriage breakup story in divorce particulars.

As a recent Law Society blog says:

“In many cases, the allocation of blame gave the truly aggrieved an ‘official’ outlet and opportunity to have their voice heard … Under no-fault divorce, separating parties will not necessarily have an outlet for all those pent-up feelings.”

As a parent, you may find yourself cast in the role of father confessor and maternal shoulder to cry on, more so than in the past. You may even be asked to amend your will or estate planning in retaliation for the ‘wrongs’ inflicted, or to ‘get one over’ on the soon to be ex-spouse.

Emotions and financial settlements

It’s important to remember that even under the old system, a court ruling on a divorce financial settlement would not be influenced by an emotive divorce petition. We would suggest you don’t rush to amend your estate planning immediately, as a lot can change in the 6+ months between filing for a divorce and it finally coming through.

If you are uncertain what to do, call us for an initial consultation to talk through your concerns and situation. We can provide an impartial, external viewpoint and help with professional advice on what practically you can do.

No-fault divorce is here to stay, and so are we. If you need to talk about the impact on your estate planning of your child’s divorce, or indeed your own divorce:

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At each stage of the process, Paul Hammond - the Directory of Panthera, explained in simple understandable language what was going to happen and if there would be any complications. None happened, I am sure, because of his eye for detail.

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