No Fault Divorce – the end of the “Blame Game”
On 6 April 2022 the divorce “landscape” will change dramatically and for the first time in over 40 years. The family law team at Stokes Partners are all agreed that this change is long overdue and that it should help thousands of divorcing couples move forwards in ending their marriages with reduced disagreement and acrimony. We are concerned however that the information being disseminated goes too far in suggesting to people that divorce is something they can, and should, progress without taking advice. Of course we understand that legal costs are a matter (rightly) of concern to all those contemplating divorce. But making a process easier doesn’t mean that it should be undertaken without advice particularly given the enormous implications that the dissolution of a marriage has.
So what’s changing?
As things stand, a divorce petition must cite either fault (adultery or unreasonable behaviour) or separation (with or without consent depending on the time apart). The person who starts the divorce is called the petitioner and if the person receiving the divorce (called the respondent) wants to contest it, they have the opportunity to do so (unless they’ve been separated for at least 5 years). Once the divorce petition has been accepted, issued by the court and responded to the first order in the divorce can be obtained. Currently that’s called Decree Nisi. Once Decree Nisi has been granted the court can approve or impose an order resolving financial issues between the parties – a financial remedy order. Six weeks and one day after Decree Nisi, the petitioner can apply for Decree Absolute which dissolves the marriage. If they don’t make their application, three months later the respondent can do so.
New Process – New Terms
From 6 April we get not only a new process but new terms. These apply whether you’re looking to end your marriage or dissolve your civil partnership. The petition becomes the application which is submitted online by one party or by the parties together; the government is clearly very keen to encourage parties to apply jointly. The application can only be challenged on the grounds that the court doesn’t have jurisdiction to deal with the matter, that the marriage or civil partnership isn’t valid or that there’s an allegation of fraud.
After the application is made, there is then a compulsory delay 20 weeks, intended as an opportunity for the parties to reflect and to make at least some progress in finalizing practical arrangements for the future eg in relation to their finances and their children. At the end of the 20 week period the court can be asked to make a Conditional Order and after that date it can approve or impose a financial remedy order.
The Final Order can be sought six weeks and one day from the granting of the Conditional Order, and dissolves the marriage or civil partnership.
So what’s the problem?
We should make it clear that we have no argument at all with the principle of no fault divorce. It won’t make the process any easier – no-one takes the decision to end a marriage or civil partnership lightly. But it will remove one of the issues that can all too easily cause dispute that then spills over into discussions about finance and children. The basis for the divorce is almost never relevant to the resolution of issues about finances or children so why dwell on it?
Our concern is that the “myth” surrounding divorce and family law is enormous. Everyone is convinced they know their “rights”. Some people think their position is considerably better than it is in reality, others allow themselves to be persuaded (or bullied) into thinking that their claims are worth nothing and that they should just allow the divorce to progress because taking advice is pointless.
Divorce doesn’t terminate financial claims
All it does is dissolve a marriage. Far too many people think all they need to do is to get divorced and that this will ensure that they can go their separate ways with no prospect of a financial claim being made against them. Anyone contemplating divorce should at least take advice in relation to their financial issues. Any agreement they reach should be incorporated into a binding financial remedy order which the court can be asked to approve so that they have certainty for the future. There may be particular reasons why divorce isn’t in one party’s best interests – they might be better off with a formal (“judicial”) separation for example. It might be that it’s important for one party to be the sole applicant so that they can control the timing of the Final Order. Many people overlook the importance of pensions when they get divorced. Once a marriage is dissolved, if the pension holder dies their former spouse is no longer eligible for any widow(er)’s benefit. In many cases that represents a sizeable loss and where pensions are relevant we will almost invariably advise that the person without the pension should start the divorce so that they can control the timing and that the Final Order shouldn’t be sought until all pensions are sorted out.
Is it all too easy?
The guidance It says nothing about taking advice and very little about the need to resolve financial claims particularly pensions. We see clients all too frequently who have been given to understand by their spouse/partner that their pension is of no real value and shouldn’t be bothered with. They are all too frequently appalled when they discover the reality of the situation. We worry that many clients will be persuaded into making a joint application for divorce and that they will be “carried along” into making a joint application for a Final Order without any understanding of the financial implications and disadvantages to them of so doing. We anticipate that we will continue to advise many of our clients that they should be “in the driving seat” when it comes to the divorce so that they should make a sole application rather than a joint application simply to protect their position.
It was all really amicable until the solicitors got involved?
We hear this one a lot. It almost always translates into one party having come all too close to agreeing something that really wasn’t in their best interests. When they find out, having had advice, that their ex was taking advantage of their ignorance they’re unsurprisingly pretty cross. And the ex is pretty cross too because they didn’t succeed in what they were planning. Divorce isn’t just a paperwork exercise; it’s a change in your legal status and that has consequences that will affect your financial future.
Let us support you
No fault divorce is an excellent idea in principle. But please don’t think that the new changes mean that it’s any safer to dissolve your marriage without taking advice than it was under the previous regime. There’s an old saying “marry in haste, repent at leisure”. It’s equally true to say that of divorce. At Stokes Partners our team offers specialist experienced advice from solicitors who have focused only on family law for more years than they care to remember. We offer realistic, pragmatic advice to help you move forward with the right outcome for you and your family.