The no fault divorce: handle with care

Tanya Foster, Family Law Consultant at LSL Family Law shares her thoughts on no-fault divorce and the advice those in the profession could share with clients.

The journey so far

So many divorces start off on the wrong footing, and it can be hard to clamber back from the precipice of complete distrust and antagonism. Especially when, essentially, the separating couple do not want to. Even with the Family Law Protocol in place aiding a more careful and respectful approach to family law, for many, having to lay blame in the divorce petition for what went wrong, can propel the couple into a future of unhappy litigation or mistrustful and expensive negotiations.

And with a race to court, whether to get one’s word in first or for reasons of the court’s jurisdiction, there has simply been no other option but to divorce based on unreasonable behaviour if nothing else fits. And those behaviour petitions can be so vastly varying in style and tone and detail.

No more blame game

So, it is with a huge sigh of relief that family lawyers all over the country may receive the upcoming no fault divorce later this year [1]. The only option available will be to assert that the marriage has irretrievably broken down, and to say that alone. That couples can apply jointly, is also possibly – hopefully – the advent of a new way of doing family law, challenging though that may be in what is a contentious area, such that we cannot advise both parties. But the ability to start proceedings jointly can be an empowering way for couples to start a new phase of their journey out of marriage or civil partnership. The no fault divorce will ease the start of proceedings and remove the first obstacle to co-operation, the laying of blame.

But what about advice?

The online divorce application has already made divorce more accessible. Inevitably though, it will surely have reduced the likelihood that people will get themselves some good legal advice. Now that the no fault divorce process will be simpler and less antagonistic, will the knock-on effect be that less and less people protect themselves and their finances by getting advice?

Historically, most would consult a lawyer to find out about a divorce at the very least, at which point the family lawyer can explain the implications and possibilities arising. But in this world of online self-education, social media chatter, echo-chambers and same-day delivery, surely the benefits of tailored personal advice, the investment of consulting an expert and the time to think and reflect are much more easily overlooked than before.

Is there an increased danger, therefore, that the late-night online application at the end of a particularly bad day will be premature or ill-advised or even unadvised? Already the process no longer requires an advisor to state whether reconciliation has been considered or discussed. What about the clients who would have sought a divorce and gone away reconsidering, following discussion with a family lawyer?

Access to a divorce is easier and less antagonistic than ever before. That can pave the way for divorcing couples to manage financial separation and crucially, arrangements for their children, in a more amicable and constructive way. This will reduce the impact of divorce on families.

What about the respondent

A key question which will inevitably have a mixed result, is that if only one party applies, the respondent has no choice but to accept the divorce. Their response is not influential. Already divorce is so hard for the party having to play “catch-up” where their spouse long ago privately decided the marriage was over. Having then to accept that the divorce is proceeding regardless, might be academic to some. But to that left-behind spouse, it will be far from academic. Whilst there will be a 20-week period between the application itself and the subsequent request for a conditional order, to allow for “meaningful reflection”, it remains to be seen if that serves to minimise the trauma for that party. This is of particular concern if that person has not had notice of the proceedings until late into that 20-week period[2].

On the other hand, the current process, with the potential for cross-petitions, defending, and disputing allegations and costs is known to bring avoidable heartache and legal costs without actually improving relations or outcomes. For this reason alone, the no fault divorce will be welcomed.

References

[1] The Divorce, Dissolution and Separation Act 2020 passed into law on 25 June 2020 and is anticipated to introduce no-fault divorce in England and Wales from autumn 2021.

[2] Section 4 of the Act provides for a 20-week period which must lapse before the conditional order can be applied for, running from the start of proceedings