No more blame but challenges remain for divorcing couples
When the clock finally chimed for no-fault divorce, courts saw a surge in petitions from couples looking to avoid the blame game but challenges still lie ahead for couples leaving a marriage. HM Courts & Tribunals Service has revealed that some 3,000 applications were made in the week that the Divorce, Dissolution and Separation Act 2020 came into force, compared with a weekly average of 2,000 over the previous year.
The new Act came into force on 6 April 2022 and the long-awaited change allows married couples to issue divorce proceedings without assigning blame. Only a statement of irretrievable breakdown is needed and it also makes it possible to file for divorce jointly, so couples can reflect a mutual agreement to part. Previously, the only alternative to blaming one partner of adultery, desertion or unreasonable behaviour was to go through a period of separation of up to 5 years.
The aim is to make divorce less confrontational across the board, but will support victims of domestic abuse in particular, as the application for divorce cannot be contested (although it can be disputed in narrow circumstances such as if the marriage was invalid) and they will be able to avoid making allegations requiring investigation or supporting evidence. These are changes long demanded by victim support groups and family lawyers alike and the Act represents a major step forward for those looking to leave abusive marriages.
However, some aspects of the new law are causing concern. While the Act requires that a minimum of 26 weeks elapse between the start of the divorce proceedings and the final divorce order being made, professionals have highlighted that the new process could result in the other party finding out about the divorce proceedings with little notice.
That is because the 26-week period of notification of proceedings runs from the date the petition is filed with the court, not from the date that proceedings are served on the respondent. While the new rules nominally provide for service on the respondent within 28 days, in practice the applicant may not follow the provision, and the court cannot reset the timetable if service is delayed unless a formal application is made and approved by the court setting out reasonable grounds for the delay. Given the backlog in applications at the court on existing court work, many family lawyers are concerned as to how this will work in practice.
The applicant can then apply for the conditional order at any time from 20 weeks after the filing of the papers at court, provided the respondent has been served at some stage, and then six weeks later the application can be made for the final decree. As long as the notice is served on the other spouse at some point before the end of the initial 20 weeks, this is sufficient notice in law for the divorce to proceed. If the notice is received at a late stage, it could mean someone finds themselves with little opportunity to take legal advice, to manage finances or request special considerations, such as the divorce taking place in a foreign jurisdiction.
There are also additional issues with costs orders. Previously, under the old law, the applicant could make a claim for costs for the divorce work but that is no longer possible. In practice it is hoped that the majority of applications will be joint and so the applicant and respondent will agree to share the costs by agreement. However, where the applicant is applying solely, they need to be aware that they will be responsible for the cost of the divorce process.
In summary, whilst being able to apply for a no-fault divorce is a huge step forward, there are likely to be ongoing issues particularly in the area of costs and service.
Sadly there are also other areas in family law which need reform including the way that financial arrangements and childcare provision are made on divorce. It would also ease future marriage breakdown if there were formal recognition of prenuptial agreements, so couples had more certainty and can avoid arguing about finances if the worst happens. So, family lawyers do welcome this new law but there is still more that can be done.
If you have any questions on this article or wish to talk to us about it, please contact a member of the family law team.