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Article by Tonicha Allen and Anna Chambers: No Fault Divorce, Help or Hindrance?

On the 6th of April 2022 to the delight of many family practitioners, the Divorce, Dissolution and Separation Act 2020 (DDSA 2020) instigated a momentous change to divorce proceedings. No fault divorce is now a legitimate way to end a marriage.  

Couples are no longer forced to prove an allegation of wrongdoing in order to demonstrate irretrievable marital breakdown. Similarly, couples do not need to have lived apart for either two or five years in the absence of such wrongdoing. Under s.1(3) of the Matrimonial Causes Act 1973 (as amended by DDSA 2020), the court must now treat a statement (by one or both parties to a marriage) that the marriage has broken down irretrievably as conclusive evidence of such. The new procedure will allow a conditional divorce order to be made following a “period of reflection”, purely based on the confirmation from either party that they wish to proceed with the divorce.

Despite many feeling that this legislative change is long overdue, in the following article we investigate whether the amendment is entirely as beneficial as it first appears.

 

Blame

Prior to no fault divorce, for many the quickest and easiest way to proceed with a divorce was to point to some form of unreasonable behaviour that had led to marital breakdown. The obvious result was animosity and resentment between spouses that can now be largely avoided. The most glaringly obvious advantage of the new no fault divorce is exactly what it says on the tin – fault doesn’t need to be attributed to either party, so couples no longer have to enter into the blame game. This long-awaited development to divorce procedure will allow couples to bring their marriage to an end on much more amicable terms than previously.

No longer will vulnerable and intimidated spouses be trapped in a marriage simply because they were forced to prove unreasonable behaviour. Never again will we see cases such as Owens v Owens [2018] UKSC 41 [2018] 4 All ER 721 where spouses were forced to remain in loveless marriages whilst their partner retained that last modicum of control over them by preventing them from proceeding with their divorce.

However, as the primary application procedure for no fault divorce has been reduced almost entirely to a “tick box” exercise, there is no longer the opportunity to disclose any emotively charged matter on the application itself (such as infidelity). By removing the need for individuals to apportion blame, has the legislature also inadvertently removed the ability for parties to gain “closure” on certain issues?

The previous position was that in order for a divorce to be finalised, the “at fault” party would either have to admit to their bad behaviour, or the court would have to adjudicate on the matter. Conversely, under the new legislation it is not required that the badly behaved partner admits, or is held to account, for their actions. For individuals who struggled through their divorce, perhaps due to feelings of shame or embarrassment, adjudication may have provided a level of vindication for their decision. This vindication is no longer on offer.

It remains to be seen what effect the lack of blame within the new procedure will have on the division of assets. It is hoped that the reduced animosity as a result of an absence of blame will allow parties to enter into negotiations about finances with a more positive outlook. However, in the recent case of Lockwood v Greenbaum [2022] EWHC 845 (Fam), when considering the new provisions, Mr Justice Moor stated, “Whilst extremely welcome, this new law will not end the sort of attritional litigation in relation to ancillary matters, such as financial remedies, seen so vividly in this case, unless the parties recognise that such an approach is entirely destructive, extremely expensive and thoroughly damaging to everyone involved.”

 

Proceeding on a Sole Basis 

In the spirit of cooperation, couples who are both in agreement about the state of their relationship can continue to work together in bringing it to a legal end. Attractively however, there is no bar on a joint application proceeding on a sole basis if, for example, one spouse changes their mind and withdraws their support. This further prevents the animosity and tension that can be ever present in the divorce process. Parties are not disadvantaged or penalised in any way for starting their application together, as there are no additional hoops for the then proceeding sole applicant to jump through in order to continue with their application. Consequently, there is less potential for a complete breakdown in relations as a result of one party not wishing to proceed with the application, as the proceeding party can continue on their own.

By any account, there were relatively few divorces defended under the old regime and it is envisaged that even fewer will be defended in the future now that the new rules have significantly reduced the grounds available. Under new rule 7.1(3)(b) of the Family Procedure (Amendment) Rules 2022, a disputed case is limited to one where either the validity or subsistence of the marriage, or the jurisdiction of the court to entertain proceedings have been disputed. In other words, a divorce can only be disputed on procedural grounds and not simply because one party does not want a divorce.

Interestingly, a disputed case under the new rules is also one in which the respondent has similarly made an application for matrimonial order; a cross-petition is not simply progressed forward alongside the original petition. This stance under the new rules may seem odd given that there is no requirement to apportion blame, and therefore the cross-petition would have less substance as previously if the respondent spouse is alleging wrongdoing on behalf of the applicant.

 

Societal Impact

However, one must consider the flip side of this ability to proceed on a sole basis. Without the ability to contest a divorce, it can be the decision of one party to the marriage alone that it is to come to an end.

Some thought must be given to the threat that many will feel this poses to the sanctity of marriage, making it all too easy to get a divorce. One could go so far as to posit that this option for a swift agreement juxtaposes traditional marital commitments, specifically the intention of committing to someone for life. This is enhanced by the fact that a commitment which must be entered into by two consenting people, may now be ended by one of those parties alone.

It does beg the question, if there is knowledge that this vow can be so easily revoked by mutual agreement or a sole decision, can this commitment really be viewed as “lifelong”? This view may be held particularly within religious circles. In many religions there is an emphasis that couples should try and take their time to work through problems instead of jumping to divorce as the answer. Whilst the newfound “period of reflection” may go some way to appeasing this issue, there is still the possibility that couples will not use this period as intended, and it will simply act as a prolonged waiting period for the inevitable. Some commentators may feel that this allows for an all too free and reckless entrance into marriage.

As well as the impact on social issues, this change has the potential to evoke some practical problems within legal spheres.

 

Time Delay

In accordance with the overriding objective, courts are instructed to deal with cases expeditiously. However, the new legislation is of little assistance in this regard, with the initial “period of reflection” (the minimum permitted time prior to making an application for a conditional divorce order) being 20-weeks. Following the grant of a conditional order there is then a further 6-week period before any final order will be given by the court. In total, this results in a minimum 6 month waiting period from initial decision until final divorce order. This can be contrasted with the previous position where if one party was found to be at fault, proceedings had the potential to be wrapped up in significantly less time.

If one of the aims of the legislature was to make this process easier or swifter for couples who are agreed on their marriage coming to an amicable end, a six month wait time seems unnecessarily lengthy.  As set out in the DDSA 2020 it is now clearly stated that if a married couple provide a statement of irretrievable breakdown, then the court must accept this as being conclusive evidence of exactly that. Why, if this is the case, is a period of 20 weeks of reflection still required? Perhaps the answer to this question relates to finances.

 

Financial Resolution

Provision has been made for those situations where finances still require resolution; the final divorce order can be delayed until financial provision has been resolved. An application can be made by the respondent under s.10(3) Matrimonial Causes Act 1973 (as amended) to delay the making of the final divorce order until the court is satisfied of one of two conditions. Either that the applicant should not be required to make any financial provision for the respondent, or that the financial provision made by the applicant to the respondent is reasonable and fair, or the best that can be made in the circumstances.

This provision will be of benefit to parties where there are outstanding issues surrounding the division of assets, for example, if there are significant pension benefits yet to be agreed upon. It is important that the party wishing to make such an application acts as expeditiously as possible, in order to avoid missing their opportunity in the event that the final divorce order is made in the interim. It remains to be seen whether this provision will stretch far enough, particularly in the unfortunate event where one party dies after the final divorce but prior to financial settlement. In those circumstances, the legal status of the surviving party would no longer be a spouse, they would not enjoy the automatic financial entitlements they otherwise would have been permitted to in respect of pension benefits, life insurance policies and the like.

 

Wider Impact on Legal System

Finally, in a system which is already facing such a hefty backlog of cases, the potential for a sudden influx of divorce applications being put before the courts is concerning. With the knowledge of the upcoming change to the law, it seems that some couples have been keenly awaiting the date of April 6th 2022, prior to making their divorce applications. This may result in additional pressure being applied to the court system and consequentially, further delays.

This negative impact may also be seen in practical terms; with each other’s support, it is possible that couples may now attempt to move forward with their divorce proceedings without proper legal advice. If advice is sought, this may be less likely to be done at a beneficial, early stage. This could lead to cases becoming messy or complicated, or to individuals trying to navigate the court system without legal counsel to assist them.

 

Conclusion

Overall, it remains to be seen what the practical implications of the novel legislation will be. Without significant case law to underpin these suppositions about its positive and negative elements, we are forced to simply wait and see what effect that no fault divorce will have on individuals, families, lawyers, and the court system.

 

Tonicha Allen & Anna Chambers

Park Square Barristers

10th May 2022