Delay in ’No Fault Divorce’, but change is coming.
It has been a long time coming but for those wanting to apply for a divorce on the basis of ‘No Fault’, the wait is going to be just a little longer.
Originally hoped to come into force this Autumn 2021, the government announced last week that delays in the IT infrastructure and the need to update a wealth of forms and procedural guidance, this will now be bought into law on 6 April 2022.
The campaign for a no-fault divorce system has been passionately pursued by many in our profession for countless years, with countries like Australia notably being way ahead of the curve by implementing this in 1975. In 2016, I lobbied our local MP and attended Parliament with Resolution to 'End the blame game' for divorcing couples.
It is often a surprise to clients that they have to play the ‘blame game’ to apply in a timely way for divorce, by putting down examples of the behaviour of their ex-partner which they find unreasonable. The alternative is to wait two years from their separation, but that comes with its own challenges; not only does it need both parties to agree, but it may also be that a separated couple may have dealt with their finances on separation and so two years down the line their financial picture may look quite different, raising questions about the latter fairness of their agreement or leaving a financial tangled web to be unwound.
The new ‘fact’ of irretrievable breakdown will allow a separated couple to proceed and removes the need for both to agree. Given a marriage takes two to work, expecting a couple to remain married when one of you considers the marriage is over is baffling to anyone. Plainly there is little point in prolonging the marriage further, and so the change in the law will now allow an application be made in an arguably far more respectful and mature way.
Given the law has been this way for many years, some ask what sparked the change? In any divorce, the spouse who responds can object to a divorce application which has been made on the basis of their unreasonable behaviour or their adultery; if they formally do this, by defending the application, the onus rests with the Petitioner (the spouse who applies) to prove their allegations are true. The infamous case of Owens v Owens in 2018 went along a lengthy (and costly) path right the way to the Supreme Court on this very point, leaving the parties arguing over whether there should be a divorce at all instead of accepting the marriage had run its course and shifting the focus to how their end their financial relationship.
As a Resolution member, I am committed to helping clients achieve a dignified and amicable outcome to their divorce and, as far as can be possible (not least when there are children involved) seeking to try and preserve ongoing family relationships for the future. For many, a change in the law is very welcome and will unquestionably assist clients and their trusted advisors alike to achieve a cordial outcome.
The upset for some will be the further delay in implementing this change. Whilst I have newly-separated clients who felt they could and wanted to hang on a few months to apply when it was hoped the change would come this autumn, the delay to April 2022 has been a lot to bear for those who may have separated already and are keen to get things finalised. The question on their lips is ‘What should I do? Should I wait?’
As with many things in the law, there is no one size fits all. Each couples financial circumstances are different and could warrant a hesitant but persistent need to tie off their finances now. As with so many things, getting tailored, expert advice is key to ensuring you can secure your legal position now. A keenness to draw a line now, an expected financial change that both parties want under their belts, or simply wanting to move on sooner rather than later, can be any of the many reasons why.
In the months to come, I am sure we will have clients who just feel the uncertainty is too much to bear and will proceed using an out-dated and avoidably combative process, but I hope they do so knowing that change is coming for those who will tread the path behind them.
Change is coming.
Written by Marjha Golding-Evans, Head of Family at RDP Law and Resolution member.