The Divorce, Dissolution and Separation Act 2020 - a new dawn for Divorce

The Divorce, Dissolution and Separation Act 2020 comes into force on Wednesday 6 April 2022, the so-called no-fault divorce. This much anticipated reform to divorce law will change the way divorce and civil partnership dissolution is approached and conducted. The absence of blame in the divorce process is expected to reduce hostility and acrimony which is currently endemic, which in the past has often led to a level of rancour that affects all the dealings between the parties.

From 6 April 2022, all a couple will have to do the start the process of divorce is for one or both parties to give notice that the marriage has irretrievably broken down and an application for a divorce order is made. This statement will be accepted as evidence that the marriage has broken down. The new Act provides for a period of reflection to confirm whether the couple are both absolutely certain that divorce is the correct course of action they wish to take. After 20 weeks from the beginning of proceedings, a Conditional Order is granted, this replaces the decree nisi. Following this, if the couple still wishes to divorce, a Final Order is made to end the marriage, instead of a Decree Absolute.

There are very limited circumstances in which a no-fault divorce can be contested. Often in the case of a cross-border divorce, parties may be entitled to apply for a divorce in more than one jurisdiction. A respondent may not agree to the jurisdiction and is entitled to challenge this. The court will assess which court has the closest connection to the parties and that court will then hear the divorce.

Another situation that can provoke challenge is if the validity of the marriage or civil partnership is questioned. This may be the case in circumstances where the marriage was entered into illegally and was registered incorrectly. Also, if irregularities are found in compliance with the divorce procedure, this may result in an objection.

Daniel Theron, Partner, commented “this is a turning point in divorce law and a change welcomed by many practitioners. It is viewed by many as the most significant family law reform in over 50 years. Removing blame and reasons for parting couples and removing the unnecessary acrimonious reasons which can plague other aspects of a divorce or dissolution may in some cases lead to a swifter resolution of issues. It is also a welcome reform that will hopefully protect victims of domestic abuse who previously had to run the gauntlet of exposing an abusive spouse in their attempts to be free of abuse.” Daniel further pointed out “the consequences of the Divorce, Dissolution and Separation Act 2020 will be far-reaching in several ways, helping to maintain a civil relationship between former spouses, particularly where there are children of the marriage.”

The financial arrangements, including the division of the marital assets and child arrangements, will continue to be heard before the court as they are now. Both issues being notoriously open to prolonged and antagonistic disputes. A couple can limit the potential risk for financial disputes, should the worst happen and the marriage breaks down, by having the foresight to draft and enter into either a pre-nuptial agreement or a post-nuptial agreement. A court can give effect to fair pre-nuptial agreements since the landmark Supreme court decision in 2019 relating to the case of Radmacher –v- Granatino

In Radmacher –v- Granatino, the court decided that fair prenuptial agreements entered into by the free will of the parties, without undue influence and in the full knowledge of all the legal and financial implications, had legal weight.

Giambrone & Partners family lawyers are skilled in managing sensitive financial arrangements and child arrangements, especially related to cross-border divorce. Our highly experienced lawyers will guide you through the new procedure.

Daniel Theron has a degree and post-graduate degree in law from University of Pretoria and QLTT transfer One World College and BPP in London. He advises clients in family law, employment, cross-border debt recovery and defamation. Daniel has extensive expertise in contentious cross-border family law and complex financial arrangements.

Daniel is meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He has an excellent level of achievement, in excess of his clients’ expectations.

Daniel speaks English and Afrikaans

If you would like to have more information about the no-fault divorce please contact Daniel’s clerk Sam Groom at SG@giambronelaw.com or please click here.