Last week news broke that the Divorce, Dissolution and Separation Bill had received Royal Assent and will, in all likelihood, finally be implemented by autumn next year, bringing with it the eagerly awaited ‘no fault divorce’.
Campaigners for the reform have gathered momentum in the wake of the widely publicised Supreme Court decision in Owens v Owens where a husband successfully stymied his wife’s attempt to divorce him, on the basis that she had failed to demonstrate that he had behaved in such a way that she could not reasonably be expected to live with him. Aside from the inevitable minority of naysayers who fear that the bill will be the final nail in the coffin for the sanctity of marriage, it has been widely backed by family lawyers and individuals alike as a much needed reform to an anachronistic piece of legislation that has remained unchanged for half a century.
Under our current regime, unless both parties agree to a divorce and are willing to wait two years for it, one spouse has to draw up allegations of the other’s ‘unreasonable behaviour’ or prove that adultery has taken place. When drafting a divorce petition, there is an unspoken agreement between sensible practitioners that they will keep their client’s allegations of unreasonable behaviour as anodyne as possible so that, while meeting the threshold needed to justify the granting of a divorce, they don’t cause undue or unnecessary antagonism. However, perhaps under the misconception that the more blame that can be attributed to one party, the more likely the other is to achieve a favourable financial settlement, or perhaps simply because they believe they are legally required to do so, many individuals use the petition as a mud-slinging opportunity, overflowing onto continuation sheets as they itemise meticulously their former partner’s shortcomings and misdemeanours.
Needless to say, while it might feel cathartic to stick the knife in, this emphasis on attributing blame only serves to stoke up the antagonism at what is already a turbulent time for divorcing couples and their children, having a potentially catastrophic effect on their ability to resolve their finances amicably and co-parent effectively.
So what will change under the new legislation? Instead of basing the divorce on one of five facts, parties are simply required to provide a statement of irretrievable breakdown which will be accepted by the court as conclusive evidence that the marriage is beyond repair and should be brought to an end. Respondents like Mr Owens will no longer be able to ‘defend’ divorce proceedings, other than on limited and unusual grounds such as fraud. There will also be the option for married parties to apply jointly for a divorce and there will be a minimum period of 20 weeks between application for a divorce and pronouncement of Decree Nisi, designed to afford parties the opportunity to negotiate their financial arrangements. Essentially it will neutralise the starting point of divorce, hopefully paving the way for a calmer, kinder exit and, as a consequence, lowering legal costs.
As we shift away from a culture of blame towards a fairer system, the main focus is designed to be on fairness of financial outcome. But what if it feels like a fair outcome is out of reach for one party because they can’t access funds to pay for legal fees? One of the most effective ways to achieve equality of arms and a fairer starting point is through litigation funding. It can empower parties to reach a swift and fair resolution whilst often enabling parties to avoid a realm of additional litigation such as LSPO applications, MPS hearings and endless muscle flexing correspondence with the side that holds the purse strings. This in turn saves money, avoids animosity and focuses the parties on reaching a resolution.
With no-fault divorce now on the horizon, there are high hopes within the family law community that focus will move away from the culture of blame and acrimony and towards an emphasis on fairness of outcome and minimising the consequences of divorce for adults and children.