'No fault divorce': a change for the better?

On 6 April 2022, the family law world experienced the biggest change in the divorce process for over 50 years. ‘No fault’ divorce, which replaced the previous divorce legislation last month, came into being through the Divorce, Dissolution and Separation Act 2021.

Although perhaps influenced by the long running saga of Mr and Mrs Owens, the main influencing factor was undoubtedly the fact the previous legislation did not sit comfortably with the desire for separating couples to settle their issues, where possible, by agreement out of court.

Cynicism may also suggest the government, faced with a court system crippled by underfunding and overstretched administration, was keen to create a cheap online service which would slash overheads with immediate effect.

How the new legislation works

·        The couple can make a joint application which can form the basis of a completely amicable separation.

·        The ‘five facts’ of divorce have been replaced by the simple statement of truth which just confirms the marriage has broken down irretrievably. The need to show any kind of ‘blame’ has been completely removed.

·        Outdated terminology has been replaced with plain English, making it easier for people to deal with themselves rather than seeking legal assistance

·        Decree nisi is now called a ‘conditional order’. The court cannot make a binding financial order until after the conditional order is made.

·        Decree absolute is now called a ‘final order’. It is this final order which will bring the marriage to an end.

·        The ‘petitioner’ will be called the ‘applicant’ which means the person (or persons if joint) who instigates the process.

·        It is no longer possible to contest the proceedings but rather there is a fixed time period of 20 weeks before a conditional order will be made. This is to provide the couple with time to reflect on whether they want the divorce to proceed. You must wait 6 weeks before applying for final order, which corresponds with the previous timeframe for applying for decree absolute.

Benefits of the new legislation

In family law, it is always important to ‘pick your battles’. An argument over the grounds for divorce was never sensible or cost effective. And realistically, if one person feels the marriage is over and doesn’t want to be in the relationship and more, how can the other spouse effectively compel them to do so? Previously, an answer could be issued simply to impose delay and cost on the other spouse. The removal of this opportunity must be a good thing.

The government clearly hopes the fixed time frame from issue to conditional order is such that it will encourage separating couples down the ‘out of court’ settlement route. Let’s explore how that might work in practice and what the pitfalls might be.

Pitfalls of the law

The simple instatement of a ‘no fault’ divorce regime will not remove all causes of bitterness and acrimony and the desire for retribution overnight. The intrinsic behaviours which accompany relationship breakdown will usually not disappear, purely as a consequence of a change in the rules. One of the reasons, for example, the themes of Shakespeare’s plays are so easily translatable into everyday life, is human nature doesn’t change. Even though ‘fault’ is removed from the process, it doesn’t mean the whole basis of relationship breakdown will change overnight.

Of course, for those who have amicably agreed to separate, the new legislation removes the need to fabricate aspects of allegedly unreasonable behaviour to avoid a two year wait for a consensual divorce ground. These people will however remain in the minority

The situation could go one of two ways. What is hoped for is, due to the fixed period of 20 weeks from issue to conditional divorce order, those with disputes to resolve, either in relation to finance or children, will adopt a process which can achieve resolution within this time frame. That will necessarily mean ‘out of court’ options.

There can be no doubt the existing court process is barely fit for purpose. The overstretched and under achieving service should only be used where there is absolutely no alternative, Arguably, however, there is always an alternative. The public can often perceive a judge can ‘make’ someone behave in a particular way, and the court can provide ‘justice’ and even ‘retribution’. All incorrect! The court process is also undoubtedly the most expensive method of dispute resolution (DR).

What are the alternatives?

If we look at human nature, what separating couples really want is to be helped to reach their own agreement, or if that cannot be done, to have ‘fairness’ decided by someone else.

For those who just need a neutral forum for facilitated discussion, mediation – probably the best-known form of out of court DR due to the Mediation Information and Assessment Meeting (MIAM) – is the obvious answer.

If an outcome needs to be imposed, then arbitration fits neatly into the 20-week time frame. Although there is a cost for the arbitrator, the overall cost will be significantly less than court due to the significantly reduced timeframe.

But what about those couples who remain less amicable? Hybrid mediation, where the mediator is specifically trained to deal with high conflict and can hold confidences to assist the process and the negotiation is a fantastic tool.

Neutral evaluation is a cost-effective means of breaking impasse, bringing in an arbitrator or other suitably qualified person to give a view on a point or scenario which otherwise a judge would decide. The instruction is joint. The evaluation does not have to be accepted, but where the arbitrator has been selected between the couple, their view should be well regarded and influential.

The Certainty Project provides the fusion of mediation (hybrid if appropriate) and arbitration. An arbitrator is appointed at the outset to have overall control of the case. First, the mediator will try to help the couple reach agreement, their lawyers having dealt with disclosure. If some or all issues are incapable of resolution in mediation the arbitrator will step in to make the decisions required, either on paper or via an oral hearing. The project was given the adjective ‘certainty’ because of the certainty of both personnel involved in the case and, just as importantly, timeframe. The project is intended to fit neatly within the 20-week window between issue and conditional order.

Yet the reality is only about a third of family practitioners have any DR training at all. It will remain easy to persuade the unhappy recipient of a divorce petition, ‘no fault’ or otherwise. The court is the best option.

The future of family law

Will this mean ongoing litigation is stretching way beyond the conclusion of the divorce process with all the risks accompanying the incompatibility of timing? Or is there a grave danger because of the simplicity of the divorce process and a natural reticence to instruct a lawyer that many people will divorce without financial matters being properly regulated or concluded?

Perhaps the new legislation will actually bring about a far more important change in family law than ‘no fault’ divorce; a necessary move towards DR which avoids court and its inherent delay and consequential training of far more family lawyers in the DR processes which can facilitate this. If this is right it can only mean a far better future for separating couples and more importantly, their children. We can but hope. Let’s watch this space.

Karin Walker is a family lawyer at KGW Family Law kgwfamilylaw.com