On 6 April we saw the introduction of one of the most significant changes to English divorce law for decades: no-fault divorce. This has, rightly, been hailed in the legal and mainstream press as a milestone. Practitioners and the public have fought hard for this over many years, recognising that the previous system created unnecessary and avoidable conflict right at the start of the divorce process. Few practitioners will miss disputes over the drafting of unreasonable behaviour particulars, for instance, which could start a case off on the wrong foot before it even began.
The new system is undoubtedly a huge step forward for family law and reflects what most people instinctively think of as fair: that if one spouse thinks the marriage has irretrievably broken down, that should be sufficient to obtain a divorce.
As much as this new system is welcomed by family lawyers, it is certainly not a silver bullet which solves all the problems divorcing couples can face (especially if they are unrepresented) as they navigate the divorce process. Potential issues remain.
Far from being "quick and easy", no-fault divorce actually takes longer than the previous system. "Cooling off" periods totalling 26 weeks mean that an applicant who filed on 6 April will not receive their final order until October at the very earliest. We do not know how well the new online system will cope with public demand but even if everything goes smoothly, the process will take a minimum of six months.
Blocking final orders
We are likely to see many more applications made under section 10(2) of the Matrimonial Causes Act 1973. The scope of section 10(2) has been widened and, as respondents cannot now contest a divorce application (save in very limited circumstances), this gives those respondents who want to delay a divorce,or cause difficulty for their spouse, their opportunity to do so. Applicants can get to conditional order stage regardless of any objections from their spouse, but respondents have the scope to block final orders more easily than they could block decrees absolute under the previous system.
Divorce applications must be served within 28 days of issue, failing which the applicant must apply to extend the time for service. There is no clarity about what happens if an applicant files outside the 28 days without seeking an extension, or where the application for an extension is refused. Has the application then been validly served? This is particularly relevant for dual jurisdiction cases where, in the past, protective petitions could be issued and left unserved for many months.
These changes are meant to make the divorce process cheaper and more accessible to the public, but the increased court fee of £593 is hard to justify. More interim applications (about service, for instance, or under section 10(2)) mean more application fees on top and more cost to the applicant. The system does not allow couples applying jointly to split the court fee between them.
Couples can now obtain a no-fault divorce and, ideally, secure that themselves online, paying only the court fee, without the need to involve lawyers. That is a hugely welcome development and should help many separating couples avoid unnecessary expense and acrimony. However, it does nothing to ease what is often the major expense and obstacle in a separation, namely resolving the finances. Separating couples who have agreed their financial outcome between them are still faced with the task of preparing a Form A, financial draft order, potentially a pension sharing annex, and the new, expanded, Form D81.
While plenty of separating couples can achieve this, perhaps with help from the online guidance or Citizens Advice, for others it presents a challenge which is insurmountable. In those cases, the separating couples will often implement what they can between them and then leave matters as they are, creating potential issues for the future.
For separating couples who cannot agree, the prospect is even bleaker. Repeated cuts to legal aid mean the financial remedy courts are full of unrepresented parties, whose hearings take longer, about issues which could often have been resolved with access to just a few hours of legal advice or mediation.
Divorcing does not just mean dissolving a marriage. It also (usually) means some financial adjustment between the parties, even if that is only selling a house or splitting a joint bank account. Some cases will always need a judge to decide, and the help of specialist family lawyers, but many do not. For those couples there is still much to be done to make the process simpler, fairer and more accessible.
Please note this content was originally published by The Law Society Gazette in the Family Law legal update section of the 22 April 2022 edition see here.
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This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2022