Case Study

Divorce Reform - Perspective on the government response to the consultation on reform of the legal requirements for divorce

24th April 2019

Divorce Reform - Perspective on the government response to the consultation on reform of the legal requirements for divorce

The news that the law regarding divorce is about to change should be welcomed, says Higgs & Sons Family law expert Philip Barnsley. Under current law, unless couples have lived apart for two or five years, they are legally required to cite adultery or unreasonable behaviour as a reason for the breakdown of the relationship in order to seek a divorce. As Justice Secretary David Gauke announces an overhaul of the Divorce laws in England and Wales, that should allow couples to separate more quickly and with less acrimony, Philip takes a more in-depth look.

It is fair to say that on first reading of the full response from the Government, along with various headlines and coverage in the press earlier, many were surprised by the extent to which the Government are proposing to reform divorce laws in the UK, and much of this has been received very positively by those of us working in family justice.

There has been much comment about how these reforms should help to reduce animosity in divorce and family proceedings, especially in matters where there are children involved. I would wholeheartedly endorse many of these comments but the purpose of this is to look a little deeper at what is actually being proposed and to speculate on how this may be received and implemented as well as some of the potential knock on impacts of these changes.

One of the first issues to be considered is what the impact might be on the UK divorce rate.

This issue was speculated by the BBC, in comparing the impact on divorce rates in other jurisdictions following similar changes. The most useful comparison is with that of Scotland which saw a 20% increase in the first year that they moved to a no fault system but interestingly, some 10 years on, the actual divorce rate has dropped by around 50% from before such changes took place. So much for the concerns of those who say that it will make divorce easier and more prevalent in our society.

Of course, some or all of this may be attributed to the fact that the marriage rate is correspondingly falling but even so, the fears of some that this will have a devastating effect on the institution of marriage do seem to be somewhat wide of the mark when looked at in the light of other jurisdictions and their experiences.

Twinned with the rise of electronic methods of entering into divorce and the much talked about online divorce pilot launched by the Ministry of Justice, it will be increasingly common for people to issue their own proceedings online, especially once any new legislation is passed through Parliament. The removal of the barriers to issuing proceedings on fault-based conduct will hopefully see a simplification of the process and allow those who want to deal with their affairs themselves to do so in a straightforward way. This has to be encouraged.

However, there are some caveats and it does seem that while simplifying the process for divorce itself can be achieved by legislating the reforms proposed, the complications around arrangements to deal with children and financial affairs risk being either overlooked or causing the parties equal amounts of anxiety, conflict and stress as the grounds for divorce have historically proven.

It seems to me that it is incumbent upon both the Government and those of us involved in the family justice system to increasingly look to methods of dispute resolution, which are non-court led and less adversarial than has traditionally been the model for many. The rise of mediation and other methods of dispute resolution can only assist the parties who are trying to find constructive ways of dealing with their marital affairs and alongside these, it is important to also push collaborative family law and arbitration along with any other non-court led solutions that help to provide a more constructive environment for families who divorce.

Just two years ago, we at Higgs & Sons published a document entitled The Higgs Guide to Divorcing Well which emphasised the availability and benefits of various methods of resolving disputes, apart from litigation, and pointed to the national average for cases going to court being somewhere in the region of 34% while our average was around 4%. It is fair to say that some firms are better prepared for the brave new world than others!

Looking at the detail of the Government response, there are a few issues which have been reported in the press but there are a few others that seem to be important but need more clarity and thought, as well as consideration by both the Government and those of us who will be implementing them in the real world.

By removing the need for any form of blame and replacing it with a simple statement of irretrievable breakdown, this does seem to have the impact of removing the often fraught process of blame from the process. However, the Government response, and all of the publicity around it, fails to give any detail as to what form that statement will take. If this is to be a fully pleaded document that sets out the basis upon which one or both parties allege that the marriage has broken down, it would seem to run contrary to what the Government intends. Hopefully, this will be a very short standard statement made by one or both parties in order to commence the divorce process. More detail on this is awaited.

The removal of the opportunity to contest divorce proceedings is another interesting and welcome proposal by the Government. However, it is important that the legal safeguards that we currently have will be retained, allowing people to contest a divorce based on issues around jurisdiction, the validity of the marriage, fraud or coercion. Therefore, there will still be an opportunity to oppose an application for divorce, but the proposals will remove the ability of one party to contest on the basis that they alone do not wish to divorce. All of those of us who have acted for or worked with victims of domestic abuse, understand the importance of this proposed change in the law and welcome it.

The introduction of a 6-month time frame referred to by the Government is intended to allow the parties breathing space between starting the proceedings and obtaining the first stage and final divorce documents. It is intended that there will be a 20 week timeframe between the first statement of irretrievable breakdown and the first stage of divorce, commonly known as Decree Nisi, and then a further 6 week delay between the first stage and a second statement of irretrievable breakdown to lead to the final decree of divorce, currently called Decree Absolute.

In practice, with the level of court delay and the fact that many parties have anecdotally reported that they accept proceedings for divorce on grounds that may not be strictly true, it seems to me that there will be very little difference in practice and indeed if a 6 month timetable is actually achieved, then this in many instances will actually speed the process up rather than slowing it down!

This seems to me very much a procedural issue and one which is intended merely to allow the parties to consider and reflect their decision while giving them time and space in order to resolve issues around their children and financial affairs.

The Government also intend to remove the reference to ‘petitioners’ when referring to those who issue proceedings for divorce. Instead courts will refer to ‘applicants’ and also change the names of the stages of divorce from Decree Nisi and Decree Absolute to Conditional Order and Final Order. This move towards more understandable language is to be expected with the commitment to making legal proceedings more accessible for members of the public and the increasing number of DIY divorces being issued, a trend which I can only see continuing.

The introduction of the ability for parties to jointly petition the court for divorce is another interesting, if perhaps unexpected, proposal in the Government response. It is a common reality that many times in practice we speak to people who have already discussed and agreed their separation and, as difficult and painful as that may be, it does seem logical to me that those parties should then be allowed to petition the court jointly and to start from a footing of consensus which hopefully can be continued through their dealings.

It also raises the spectre, again, of further changes to both the Family Procedure Rules and Law Society Regulations on conflicts of interest, and the ability for there to be a position where there is one family with one lawyer representing those parties. Certainly, the Government response and proposed legislation to include the ability for parties to jointly petition the court, does lend itself towards a position where one lawyer could represent both parties in a divorce. There would obviously need to be a level of consensus, but subject to sensible legal safeguards around any instructions, I see no reason why this could not be achieved.

In an era where the law is striving to be relevant and respond to client needs, this surely must be a logical next step and one which I certainly would encourage further debate and proposals to be put forward upon, so that the profession may move with the times and respond to clients’ needs, both now and in the future, in ways that clients will want and need those services to be delivered.

Watching the legislation be introduced into Parliament and seeing its journey will now be an interesting time. Let us all hope that this latest Government response does not turn into another Family Law Act 1996, which ultimately ended in failure in front of Parliament. It certainly seems that the political will in this regard is very much towards there being genuine reform and progress in divorce law and I, along with many others who work in this area on a daily basis, would certainly welcome the recommendations within the Government response towards meaningful and practical reform of divorce laws in the UK.

 

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