BACKGROUND
After a long campaign by family lawyers since No Fault Divorce was almost introduced in 1996, it is wonderful news for separating couples that on Monday 8 June 2020 the House of Commons voted in the new Divorce, Dissolution and Separation Bill by 231 votes to 16 against, clearing the second reading and passing its first hurdle to becoming new legislation.
The new bill will help end the ‘blame game’ by introducing the ‘no fault’ divorce model to England and Wales, replacing an outdated divorce law that is almost 50 years old and no longer fit for purpose. No Fault Divorce has been law in Canada since 1968 and in Australia since 1975.
WHAT WILL THE BILL MEAN FOR DIVORCING COUPLES?
The main changes will be replacing the requirement to provide evidence of conduct or separation with a new requirement to provide a statement of irretrievable breakdown. In other words, couples no longer have to blame each other for the breakdown of a marriage and the new law will remove unnecessary conflict during the divorce process.
The new law will also remove the possibility of contesting the decision to divorce and an option of making a joint application will be introduced.
The bill will introduce a minimum overall time frame of six months from start to finish and it will update the antiquated terminology so that decree nisi becomes conditional order, decree absolute becomes the final order and the petitioner becomes the applicant.
Overall, in introducing the bill, the Government’s policy objective is to reduce family conflict.
HOW DOES IT COMPARE WITH THE CURRENT LAW?
Unfortunately, people often experience the current divorce law as confusing and misleading.
In order to start a divorce immediately, you have to blame the other person, for example by accusing them of adultery, unreasonable behaviour or desertion. These are the so-called ‘fault-based’ facts and 60% of divorces in England and Wales rely on them. This percentage is very high compared to Scotland and France where it is around 6%. The high numbers of fault based divorces in England and Wales are not because there are peculiarly high levels of adultery or misbehaviour, but simply because you can start the divorce process immediately, rather than wait.
You can see how the present system creates unnecessary hostility between divorcing spouses by forcing them to apportion blame, which frequently has very negative effects on both adults and children. Currently, when the concept of fault is introduced, it is hard to contain the fall-out and fights about the children and the finances tend to escalate, rather than dissipate.
My experience over many years as a family solicitor and mediator is that the current divorce law provokes unnecessary hostility and bitterness. It does nothing to save the marriage and it frequently makes things worse for the children.
CURRENTLY, HOW LONG MUST COUPLES LIVE APART TO OBTAIN A DIVORCE?
If you are prepared to wait, rather than blame, the time period for being separated is between 2 or 5 years: 2 years if both of you agree; or 5 years if one person does not agree.
The only recently reported case which shone a spotlight onto some of the worst aspects of our antiquated, complicated and misleading divorce law is the case of Owens and Owens, which attracted significant media attention in 2017. The couple separated after 37 years of marriage . The court said that the petitioner, Mrs Tini Owens, failed to prove unreasonable behaviour, describing Mrs Owens’ divorce particulars as “ flimsy and exaggerated”. Mr Owens decided to contest the divorce. This is rare. Fewer than 1% of divorces each year are formally defended. Mr Owens was successful in defending the marriage, which is even more rare, and Mrs Owens must now wait for 5 years to get her divorce because her husband does not agree.
Overall, a divorcing couple can expect to wait even longer than 2 or 5 years because the average time from the first stage to completing the divorce last year was 58 weeks. There has been a steady increase in waiting times since 2013. The delays are very difficult to deal with for people stuck in limbo, unable to get on with their lives.
These delays have occurred despite the Government introducing online divorce in May 2018. Happily, online divorce is making great progress now and it is an essential element needed to modernise family law. Online divorce has helped to make family law safer for both staff and court users during the global pandemic.
The lack of early legal advice, following the cuts to legal aid (Legal Aid, Sentencing and Punishment of Offenders Act 2012), has also led to delays. The process for people divorcing without a lawyer (litigants-in-person) is inevitably emotionally strenuous because they have to navigate the complex maze of divorce proceedings and the associated issues of children and finances by themselves.
It goes without saying that the lock down has inevitably exacerbated delays because of the impact of covid-19 on Her Majesty's Courts and Tribunals Service (HMCTS). Although online and telephone court hearings are taking place, these types of remote hearings are not suitable for every case.
ARE THERE ANY AMENDMENTS NEEDED TO THE BILL?
I am a member of the Family Law Committee of The Law Society and we are campaigning for two amendments to the bill. The first amendment relates to both parties to the divorce having the advantage of the full notice period and the second amendment relates to pension sharing.
The position of The Law Society was outlined by the President of The Law Society, Simon Davis, in his letter to The Times on Friday 12 June, when he said that “the notice period should begin when a partner receives their spouse’s divorce application rather than from the moment the divorce is applied for. This would allow them the full notice period to consider the application and ensure both partners are on the same page from the very beginning.”
The President also said that “if couples choose to divide their pension using a pension sharing order and a spouse dies after the final divorce is granted but before the order comes into effect, there is a chance that the order could fail, leaving their ex-partner financially vulnerable and unable to claim.
Amending the bill so that a final divorce order cannot be granted until any pension sharing order has taken effect would ensure that neither party faced unfair financial burdens.”
The Law Society believes that these are important details which need to be considered to ensure the bill is clear, fair and accessible for all.
COULD THERE BE A SPIKE IN DIVORCE WHEN LOCK DOWN LIFTS?
According to the Office for National Statistics, 42% of marriages end in divorce and there were just over 91,000 divorces in 2018. There has been a long term decline in divorce since 2003 because fewer people are getting married.
Many family lawyers believe that there will be an increase in divorce when lockdown ends because couples have been forced to be together 24/7 during lockdown. Our experience is that when couples spend more time together than usual, family lawyers have an increase in enquiries. This happens in particular after the summer and Christmas holidays.
People often distract themselves from tensions and problems in a relationship by working longer hours, being with friends and even having an affair. During lock down, when couples are cooped-up together, problems that already existed in a relationship will be magnified and there is likely to be added friction caused by employment and money worries and also by increased alcohol intake.
We know that there has been an increase in domestic abuse since the lock down started and Refuge has reported a 25% hike in calls to the national domestic abuse helpline since the lock down began. The lock down has put domestic abuse victims at risk because it has made it even more difficult for them to get the time away from their abuser to get the help they need –leaving many trapped in an increasingly volatile situation.
WHAT ARE THE BENEFITS OF THE NEW BILL?
Divorce is never easy but it can be made less unpleasant by the removal of blame. No fault divorce will be kinder because it is more humane, honest and dignified and it is less traumatic than alleging blame. I wouldn’t describe it as a “quickie divorce” as many of the tabloids have done, but rather a way of ending failed marriages in an effective, simple and clean way and as painlessly as possible.