This is possibly one of the biggest questions asked by not only individuals wanting a divorce but also us as family lawyers. Here, Frances Bentley discusses whether the new reform will really have an impact both for lawyers and those going through a divorce.
The new “no fault divorce” system came into effect on 6 April 2022. It is by far the biggest change in the family law world seen in the last 50 years.
At the time of writing this, the impact “no fault divorce” has yet to be seen, so it will be interesting to review this question again once we have really seen how the new system plays out in reality.
It is certainly hoped that the impact and change will be significant. Under the “old system”, (the divorce system in place before 6 April 2022) for individuals to show that there had been an “irretrievable break down” of a marriage, one of five facts had to be evidenced, including unreasonable behaviour, adultery, desertion, 2 years separation with consent and 5 years separation. If couples therefore wanted to draw a line under matters and commence divorce proceedings straight away, then one party had to effectively “blame” the other (unreasonable behaviour and adultery being the most common). Otherwise, if they did not want to do that, they had to wait for 2 years to use the fact “two years separation with consent”. Many couples still opted for this with the intention of keeping things “amicable”.
There was however a level of concern expressed about this unnecessarily prolonging a process which was already emotionally draining for couples, especially those who wanted to achieve finality. There was also a knock-on effect in terms of the financial matters – if couples had to wait two years to even start the divorce process, then a legally binding consent order resolving the finances (which its needed for couples to “sever” financial ties against the other) could only be made once a Decree Nisi had been pronounced. Effectively for those couples, the Decree Nisi could not be granted until 2.5/3 years after since separation. This didn’t seem fair bearing in mind people need to be able to move on and to protect themselves financially.
The archaic system of “blame” (particularly adultery and unreasonable behaviour) also heightened emotions in an already stressful process, increasing the temptation to “defend” divorces. A big change under the new system is that defending a divorce is no longer an option, unless there is a real legal issue in dispute, for example in respect of jurisdiction issues, or for example, the validity of the marriage is in dispute.
The new system effectively allows couples to file a sole or joint application for divorce without blame and without having to wait the 2-year period. The legal test to show the marriage has “irretrievably broken down” still must be passed, but without the necessity to blame the other for couples who want to start the divorce process straight away. It has yet to be seen how much “evidence” the court will need for the legal test to be passed. The overall aim is to make the process more streamlined, by reducing the level of animosity, encouraging couples to work together (hence the ability for a joint application) and largely removing the ability to defend the proceedings.
This may make the process less emotionally charged. The actual procedure after the initial application will be similar – the court, if satisfied the marriage has irretrievably broken down will confirm the parties are legally entitled to the divorce and grant a “Conditional Order” (which is to replace the “Decree Nisi”). Then there will be a Final Order to bring the marriage to an end replacing the “Decree Absolute”.
In terms of the “impact”, the aim of the new system is clearly to reduce conflict and enable parties to work together in the divorce process (in the same way that they are encouraged to do so in agreeing the arrangements for their children and their financial arrangements).
In terms of streamlining the process, it has yet to be seen how this will play out. There is a concern about some new time limits that have been put in place to obtain the “Conditional Order”. The new law says this cannot be granted for 20 weeks (circa 5 months) from the divorce application. This time limit was not imposed under the old system so as practitioners, we will need to consider whether this may delay the process slightly (this being the important part of the proceedings where a legally binding consent order can be obtained). This is something that will become clearer as we adapt to the new system.
In summary, the “impact” of the new system, has really yet to be seen. We can all see and understand the reasoning behind the new system and the overhaul of the previous system is certainly a long awaited and positive step. The actual implementation of the system will however be a learning curve not only for individuals wanting to divorce under the new system, but family lawyers and the judiciary and it is certainly an interesting time for us all.
