No Fault Divorce – A discussion with Lisa Burton-Durham, Director and specialist Family Lawyer.

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The Government’s Divorce, Dissolution and Separation Act 2020, also known as ‘No Fault Divorce’, will reform the divorce process and comes into effect on 6th April 2022. Here, Director and specialist family lawyer Lisa Burton-Durham answers some key questions.

No Fault Divorce will reform the divorce process, how?

The current divorce legislation has not changed since 1973 and is therefore somewhat outdated and certainly not reflective of modern marriage and family dynamics.  Our current system meant that a couple could only get a ‘no fault’ divorce after they had been separated for a period of at least two years. For couples who want to divorce sooner the petitioner (the spouse who is applying for the divorce) must prove one of the following facts: –

  1. Adultery
  2. Unreasonable Behaviour

Both the above ‘reasons’ requires one spouse to assign blame on the other for the breakdown of the marriage.

The new legislation will mean that instead of attributing blame on one party, a couple can provide a simple mutual statement of ‘irretrievable breakdown’ as the sole ground for wanting to obtain a divorce. The couple can choose to make this statement jointly or individually. Neither will have to provide evidence of ‘bad behaviour’.

How will this directly affect the couples looking to get divorced when it comes into effect?

Removing blame will undoubtedly enable couples to focus on separating more positively, especially in circumstances of a mutual separation.

It will promote and encourage a more constructive approach to the separation especially when dealing with what can often be the more difficult aspects of divorce, such as child arrangements and financial matters.

The legislation also promises that the language used within the No Fault Divorce process will be plain English and will avoid legal jargon. This is a change that we wholeheartedly support. For example, the Decree Nisi will be known as the Conditional Order and the Decree Absolute will be known as the Final Order.

What are the timescales for couples wanting to get divorced without blame on either side?

There will be a minimum of 20 weeks between issuing the divorce application and reaching the first stage of the divorce – the condition order.

The reasoning behind this is to provide the parties with a period of reflection.

The 6-week period between the Conditional Order and the Final Order remains.

Therefore, for most couples, it will take around 6 months for their divorce to be finalised compared to 3-4 months under the current system.

For me, this is most disappointing aspect of the new legislation.  The introduction of the ‘no fault’ element is fantastic, however to impose the 20-week delay seems to go against everything that family lawyers have been campaigning for – that is for there to be a divorce process that allows couples to trust their own judgment to know when their marriage is at an end and to provide them with autonomy in deciding whether they wish to remain married to each other.  For many couples they will have already ‘reflected’ before starting the divorce process and so having to wait at least 26 weeks for it be finalised is likely to make the process emotionally more difficult that it needs to be.

What happens if a couple are in the middle of the divorce process, does this change affect them and could it change their outcome?

If a couple are in the middle of the divorce process, the introduction of No Fault Divorce will not affect them. If both parties agree that their marriage has irretrievably broken down and their divorce Is proceeding with little to no issues, then changing to adopt the no-fault divorce process may incur unnecessary costs and delays as you would essentially have to start from the beginning again.  They would also have to consider the new 20 week cooling off period.

If you are in the divorce process and are encountering significant problems and/or your partner is contesting the divorce, you may wish to re-start the divorce process and enter the no-fault divorce system. Via this route, you would not need to ‘blame’ the other party and it would mean your partner has little to no ability to contest your application.

However, No Fault Divorce will be unlikely to affect any financial settlements and arrangements for the children, which means you will likely still require expert legal advice and representation.

Family Law Partners has launched a new model called ‘Agreeable’ – where a specialist family lawyer and relationship coach work together as a team to support both partners through their divorce. What benefits does this bring to a couple?

Agreeable is a new model where one lawyer acts for both parties, and ultimately allows us to deliver bespoke solutions for clients. Couples benefit from a unique combination of specialist legal expertise and therapeutic support – led by our in-house Director of Client Wellbeing, Kim Crewe. This means that people have the specialist emotional and legal support they need from one team that shares common goals.

Another key benefits, and one which we know will provide enormous reassurance to clients, is that Agreeable is charged on a fixed and agreed price. Agreeable gives couples certainty by removing complex charging rates and the ‘charging by the minute’ model.

No Fault Divorce has been a long running campaign by the Family Law sector and it’s nearly here. How do you think this is going affect family law now and in the future?

The divorce petition is usually the first legal document that the client sees when they start working with us and it sets the tone for how the case is going to progress.

As most of the “reasons” for divorcing required an element of blame to be pleaded (n.b. not the case for two years / five years separation) it would often lead the client to feel uncomfortable either

  • placing blame entirely at the feet of the other party; or
  • dealing with the fact that their partner of many years was now levelling blame entirely at them, for the breakdown of the relationship.

It was a sad and unnecessary part of divorce proceedings which often impacted on the other elements of a case, such as arrangements for children or finances (because the hostility created subsequently bled into all elements of the relationship).

No Fault Divorce means that partners can maturely approach the end of a relationship without needing to raise ‘causation’ and this will mean that lawyers and clients can focus on the key question – ‘how are things going to work in the future, now that the relationship has ended?’. Therefore, as a result of the reform, divorce can be a more constructive process from the start, rather than having to look backwards.

In the coming years, it is also hoped that the stigma and anxiety around divorce will decrease as a result of the reform, because first, people will not be as stressed by a draconian process requiring one person to make allegations and second, because the process of divorcing will be easier to understand (the terminology is changing to make it easier to understand what is happening at each stage in the process) and (we hope) more efficient too.

Do you think the general public are aware of this significant change? If not, whose responsibility is it to raise awareness – the family law community, the Government or others?

Sadly, the majority of the general public do not appear aware of the significant change in legislation and those that are aware tend to be actively involved in a divorce, or considering a divorce or are doing lots of independent research.

It is indeed a group effort and responsibility, across various channels, to raise awareness of the introduction of No Fault Divorce. Upon an initial consultation of a new client, the family law community has a responsibility to inform them of all their options, including No Fault Divorce. The family law community is already raising awareness via the medium of social media channel and their own websites. As the change in law approaches, we hope that the government and mainstream media will increase their coverage of this issue so that more people are aware of No Fault Divorce as an option.

Lisa Burton-Durham is a Specialist Family Lawyer, Collaborative Lawyer and head of our Brighton team. To contact a member of our team and have a confidential conversation about your individual circumstances please click here.

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