As we welcome the arrival of no-fault divorce in England and Wales, Stowe Senior Partner Julian Hawkhead reflects on what this family law reform means for divorcing couples and how it impacts the role of family lawyers.
“It’s the end of the world as we know it and I feel fine” sang the US band R.E.M back in the late ‘80s, capturing a sentiment felt by many family lawyers this week as no-fault divorce is introduced.
The advent of no-fault divorce is the biggest change to impact marital or civil partnership breakdown in decades. The Divorce Dissolution and Separation Act 2020, after years of campaigning by various stakeholders in and around the world of family law, brings about the removal of blame or the requirement to live separately for at least two years as reasons for divorce.
The new changes take effect from 6th April 2022 and it is hoped will bring about a paradigm shift in the way separating couples approach the process of divorce.
Does taking the blame out of divorce mean the end of family lawyers?
Not at all. For many years family lawyers have recognised that the reasons given for a couple separating have had little, if any, material impact on the future plans and arrangements that need to be made following on from their divorce. That one spouse or civil partner behaved in such a way that the other party could no longer be reasonably expected to live with them would not itself be a factor in separating financial resources or making arrangements for the children. A barrister I worked with for many years would often tell me that the family court is not a court of morals.
Turning the focus to the future
As a family lawyer for over 20 years, I have seen many clients who have focused so much on their past that it created a distraction and shifted focus away from resolving the important issues that needed to be addressed. When anchored to the past, separating couples can often find themselves unable to move forwards, either emotionally or practically, and yet the court’s have expressed a lack of interest either through irrelevancy or simply a lack of time to do so.
Mr Justice Coleridge in a judgement published back in 2002, sought to discourage parties from undertaking a general “rummage through the attic of their marriage to discover relics from the past” in order to assert a greater level of contribution to the marriage than the other party. The same could be said for any individual who has had to harvest a list of reasons why they believed the marriage broke down as if to satisfy a judge’s morbid curiosity when reviewing the divorce petition. Save that the judge had no such curiosity, but was instead simply performing an out of date statutory duty to check that sufficient boxes had been ticked to enable a divorce to proceed.
However, from 6th April the requirement to rely on behaviour or a period of separation to justify divorce ends and is replaced with a single assertion that the marriage has broken down irretrievably. It is not an assertion that can be contested by the other person and the reasons for disputing a divorce are limited to questions relating to the validity of the marriage or jurisdiction.
A simpler divorce process
The divorce process has also been simplified, removing rather archaic language such as “decree nisi” and replacing it with a simpler more functional description of “conditional order”.
It needs to be said that this simplification of the legal process is not making it easier to get a divorce. There is and never has been such a thing as a “quickie divorce”, a phrase often used by the media and much maligned by people working in family law. The new process will take at least 6 months to conclude with a waiting period of 20 weeks from the date of issuing the divorce application before the applicant, or with the new law, both parties as joint applicants, can apply for the conditional order.
This 20 week period is designed to give the couple time to pause and reflect on their marriage and to also focus on addressing the practical arrangements that need to be made such as agreeing arrangements for the children and making progress towards a financial settlement. Parties will be actively encouraged to reach agreement wherever possible, using mediation and other forms of out of court dispute options where possible.
The role of family lawyers
Interestingly, when Stowe Family Law conducted a survey a couple of months ago it showed that the majority of people when asked about no-fault divorce were unaware of the imminent changes. A significant number still believed that bad behaviour during the marriage was and should be a factor that would influence the outcome of other issues in the divorce. A divorce process which removes any element of blame or causation to the act of ending your marriage may be difficult for some people, but it is a responsibility that rests on the shoulders of family lawyers and all those who attend to the needs of people going through relationship breakdowns to keep their attention and focus fixed firmly on looking forwards rather than looking backwards.
Whilst no-fault divorce will not remove the pain that people feel when their marriages or civil partnerships end, it will hopefully help them get through the legal process of separation with less emotional impact and help prepare them for the next chapter of their lives.
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