Joint divorces: a false dawn or a new frontier?

Peter Burgess and Shaili Desai evaluate no-fault divorce

On 6 April 2022, divorce law in England and Wales changed for the first time in 50 years, with the introduction of ‘no-fault divorce.’

This long-awaited change has been enacted into law by way of the Divorce, Dissolution and Separation Act 2020. The primary changes are:

1. One party no longer needs to cite a reason for the marriage breaking down. The most common such ground was that the respondent had behaved in such a way that the applicant could not reasonably be expected to live with the respondent (so called ‘unreasonable behaviour’). Similarly, one party does not need to rely on the other facts available to petition for divorce under the old laws: adultery, desertion, two years’ separation with consent of the other party, and five years’ separation without consent of the other party.
2. Instead of the above, there is only need for a statement of irretrievable breakdown of the marriage. This can be a joint statement, signed by both parties, enabling divorce to be applied for jointly, rather than by just one party, as used to be the case (s1(1) and 1(2) of the Divorce, Dissolution and Separation Act 2020). There is still the option for a sole spouse to apply for a divorce, if required.
3. There is a minimum waiting period of 20 weeks from the date of the application to the conditional order of divorce (s1(5) of the Divorce, Dissolution and Separation Act 2020). –what was once known as the decree nisi, the first of two ’decrees’ of the divorce process as it was.
4. There is now no opportunity to contest the divorce on the grounds that the marriage has not broken down. It is still possible to contest jurisdiction to file (which is still based on habitual residence and domicile).
5. The terminology has been simplified, as follows:

• Decree nisi = Conditional Order 
• Decree absolute = Final Order
• Petitioner = Applicant
• Divorce petition = Divorce application

What does no-fault divorce aim to achieve?

The main aim of this piece of legislation is to take the ‘fight’ out of divorce, in the hope of decreasing hostility in what can already be a contentious situation. It also seeks to update divorce laws to align them with modern views on marriage and divorce, the right to individual freedoms. Simply put, the new laws remove the need for a court of law to assess whether or not one half of a couple should be allowed to stay in their marriage.

Owens v Owens [2018] UKSC 41

A prime example of how the previous legislation encroached on a spouse’s right to divorce is the landmark Supreme Court case of Owens v Owens [2018] UKSC 41. In this case, Mrs Owens had been denied a divorce on the grounds that her husband’s behaviour was not deemed ‘unreasonable’ enough for the purposes of the divorce petition.

In May 2015, Mrs Owens filed a divorce petition under s1(2)(b) of the Matrimonial Causes Act 1973, claiming that her marriage had broken down irretrievably as Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. The examples she gave for Mr Owens’ unreasonable behaviour were anodyne in nature, presumably with the intention that she did not want to upset or aggravate Mr Owens, who had been her husband for 37 years – and was the father of their two adult children.

Mr Owens defended the petition, wishing to remain married, and the court permitted Mrs Owens to expand her allegations of behaviour. She consequently provided 27 further examples of Mr Owens being moody, argumentative and disparaging her in front of others (Owens v Owens [2018] UKSC 41, at [10]). However, this still failed to pass the court’s high threshold, who saw the further examples as being flimsy, exaggerated and isolated in nature (Owens v Owens [2018] UKSC 41, at [20]). Mrs Owens attempted to appeal the judgment to the Court of Appeal, but was unsuccessful. She then turned to the Supreme Court – but was, again, unsuccessful and so had no choice but to remain married to Mr Owens for the time being.

The case was arguably the catalyst for the campaign, spearheaded by Resolution, for no-fault divorce to be introduced in England and Wales.

The effect of joint applications

Under the new legislation, couples can jointly apply for divorce. This may, in fact, have as great or greater impact on how issues arising from marital breakdown are resolved as the removal of the fault-based ‘facts.’ A practice had formed of agreeing particulars of behaviour, so as to keep the temperature of the ensuing negotiations low key. However, this did not necessarily prevent the situation where a couple drifted apart amicably, but still found themselves pitted against each other in the context of financial remedies and maintenance and child arrangements.

Allowing the parties to make a joint application is a powerful statement to potential litigants. They are being given the message that, if they can collaborate on the divorce and separate by mutual agreement, perhaps there are other areas, historically ripe for contention, which can be dealt with by agreement and without acrimony.

The many recent changes

Over the last few years there has been an abundance of non-court dispute resolution processes available to separating spouses (as well as unmarried couples). With the advent of Legal Services Payment Orders (LSPO), the government chose mediation as the centrepiece of its strategy of keeping couples out of court. There is now a requirement to have a court application for financial remedies or child arrangements signed off by a mediator after a Mediation Information Assessment Meeting or MIAM, with some exceptions (urgency, hardship, domestic abuse). However, although mediation provides a forum for the discussion of issues, it has its limitations. Any agreement reached in mediation is not binding until the parties have taken advice. Often that advice can be polarising. As such, mediation is not suitable in every case.

Joint applications may also see a resurgence of another model, Collaborative Practice (CP), a lawyer-client model originating from the US in 1990, whereby each party instructs their own specially trained lawyer. A series of four-way meetings are held with the aim that resolution is reached as one team with each lawyer working for the parties’ joint benefit. The parties may even instruct or invite other professionals to join the team, such as financial advisers or divorce consultants, in order to equip them with the information and tools needed to reach agreement on the issues in dispute.

This model requires that all members of the ‘team’ (including the parties themselves and all professionals involved) sign a ‘participation agreement’ with a clause that prevents the lawyers from continuing to act for the parties should the collaborative process break down (International Academy of Collaborative Practice: collaborativepractice.com/what-collaborative-practice). This is to prevent any confusion around the parties having conflicting interests.

CP is not suitable where there is a power imbalance or evidence of abuse in the prior relationship. Time will tell whether there becomes a strong correlation between an expected uptake in joint applications for divorce and successful financial remedy settlements and/or child arrangement agreements via CP, but the two would seem ideal to work in tandem.

One potential barrier to this happening is the availability of CP trained professionals and the public consciousness of what a ‘collaborative divorce’ is. In 2021, David Emmerson OBE wrote that there are around 1,000 accredited collaborative practitioners in the UK but: “there has been concern by a large number of members that collaborative practice is on the decline with difficulty in being able to encourage clients to take up the process and often solicitors for the other party either are not accredited or not willing to engage in a collaborative practice” (Developments in Dispute Resolution and Collaborative Practice by David Emmerson OBE, 27 July 2021: resolution.org.uk/developments-in-dispute-resolution-and-collaborative-practice).

Other practice models

Alongside mediation and collaborative practice, a number of other models are available. These include those that mirror the court process by the parties agreeing to appoint a private judge (usually a practising barrister, solicitor or retired judge) to act as a tribunal and either to give them an ‘early neutral evaluation’ in their children proceedings, or a private Financial Dispute Resolution appointment (both of which are non-binding) or an arbitrated outcome (which is binding). These processes are not the focus of this article as they do retain the feel and structure of processes that pit two parties against each other, even if the process is usually streamlined for efficiency and far less intemperate than court proceedings.

Perhaps more interesting in the context of joint applications is the proliferation of lawyers and non-lawyers offering ‘one couple, one professional’-based services. These range from the Amicable app and service, which involves a coach administering a process driven by clients, to The Divorce Surgery, a service set up by two enterprising barristers from 4 Paper Buildings. The Divorce Surgery was the first one lawyer, one couple service on the market. The process involves both clients completing a disclosure exercise before they are given an objective view on the likely outcome.

Although the barristers’ profession has been quick out of the blocks, solicitors are catching up. The issue for members of the solicitors’ profession has historically been the conflict of interest rules which would have prevented one lawyer from advising two clients in the same transaction unless it is a joint transaction such as a joint purchase of a property. However, the advent of lighter regulation for the profession, with SRA Guidance, Principles and Intended Outcomes replacing hard rules has opened the door for a solicitor giving advice to two clients. The process could be as ‘dispute resolution’ and thus avoid the conflict rules. The other option is for the advice to be given about outcome but without it being ‘own interests’ advice. So, for example, the advice can be given about what range of outcomes is likely, without telling one client what position they should adopt in any negotiation that follows. This is similar to a judge at a Private FDR giving their indication about outcome. It is also similar to the joint opinion given by the barristers at the Divorce Surgery. This model is being rolled out by the family lawyers of Resolution under the banner Resolution Together – and has already received preliminary approval from the SRA.

Conclusion

In mediation it is very common for clients to expect their mediator (who is often a lawyer) to be able to tell them what the answer is. That is not possible under the standard Agreement to Mediate as it would be giving advice; mediators can only give information. Despite the central role taken by MIAMs under the current system, the writers anticipate that a significant proportion of separating spouses will make use of joint advice services. It is ironic that the government’s policy, which cut out early advice for litigants when Legal Aid was cut under the LASPO regime, may now end up encouraging potential litigants to think again and to consider joint advice as a first port of call. It is anticipated also that many members of the profession may be resistant to offering this service. If a couple only need one lawyer, then does that mean the sector will halve? This seems unlikely. What is far more likely is a preponderance of interdisciplinary working, with solicitors, mediators and therapists addressing each family’s needs without the need for judicial intervention. The models of non-court dispute resolution set out in this article all encourage and make possible the bringing in of outside expertise.

Peter Burgess is a partner, mediator at and co-founder of Burgess Mee Family Law and sits on the National Committee of Resolution. Shaili Desai is a solicitor at Burgess Mee Family Law and a member of Resolution: burgessmee.com