Couples who are embarking on two-year separation divorces now could find themselves having to begin the process all over again if the new legislation comes into effect before their separation period has ended.
This would mean that during the first year of implementation no mutual consent divorces could occur. The new law requires a 12-month cooling off period prior to divorce.
Contested divorces, where proceedings had been begun prior to the new legislation, would continue to go through during the first year.
The loophole emerged as confusion over what the bill would mean for couples caught between the old and new legislation was triggered by comments made yesterday by Jonathan Evans, the minister steering the Bill through the Commons.
He told Radio 4's Today programme that "in the first year after this legislation comes in nobody will be able to get divorced" leaving a question mark over what would happen to those already involved in divorce proceedings.
The Lord Chancellor's office confirmed there would be no divorces at all in the one-year period, but later stated that couples who had already filed for contested divorces prior to that date would be covered by interim arrangements.
The problem occurs in two-year separation divorces because, unlike in contested divorces, couples who wish to divorce by mutual consent or separation, actually file for divorce after the period of separation and the law cannot cover them retrospectively.
A spokesman for the Lord Chancellor's office said: "The law is unable to be retrospective and so we have been unable to make arrangements for those already undertaking divorce by consent when the law comes in. A category of people will be caught by this but the department is unable to really see a way round it."
A senior divorce lawyer said there was concern in the legal profession about the people that would fall between the old and new divorce laws. People seeking legal advice would be informed that the process could take three years, which might encourage some people into contriving grounds for divorce, such as unreasonable conduct.
Ironically, divorce on "invented" grounds is one of the issues the Lord Chancellor is trying to address.
There is also concern about the status of international cases because of the possibility that other jurisdictions will be able to process cases faster than in England. An English woman married to a French man might decide to go through a divorce in France rather than England, for example.
The Lord Chancellor expects a two-year period between the divorce bill completing its passage through the Commons and the law being implemented. If the law is passed this summer, it would come into effect from summer 1998 and the first divorces under the new law would come through in summer 1999. In the interim people will have to wait the extra year or cite grounds for divorce such as unreasonable behaviour or adultery.Reuse content