It seems so long ago that the media announced there would be ‘no fault’ divorce but I appreciate non-lawyers may not be quite as up to speed with what it all means for anyone who wants a divorce.
We should all be grateful to Tina Owens whose case, Owen v Owens back in 2018, highlighted the need for a change in divorce procedure. This case, more than any highlighted that having to blame one spouse for their behaviour to get divorced can cause untold pain, delay and heartache, as well as clogging up the court system. Tina Owens applied to divorce her husband on the grounds of unreasonable behaviour which her husband contested. She lost her Supreme Court battle, forcing her to remain married against her will (until 2020 when 5 years’ separation allowed her to get a divorce without her husband’s consent). It was clear that the law was no longer fair and reasonable in practical terms when this was all the Court could do when one party successfully contested the unreasonable behaviour alleged against them.
I’m all for progress and making things easier (and quicker) and welcome there being a means to get divorced because two people no longer wish to be married rather than one having to find fault with the other. The change in law and new no fault divorce procedure due to come into effect on 06 April 2022, the first major change in divorce law for almost 50 years, is therefore to be welcomed.
For some time, people have been able to make their own online divorce applications. To be able to do this ‘jointly’, as will be possible under the new law, would appear to save a lot of extra dispute so the couple can plan to separate without one feeling aggrieved that they are being made the one to blame.
No fault divorce could take longer than blame based divorce
What concerns me right now – without reference to the need to still get legal advice on the implications of divorce even if you can make your own application without a lawyer, which is a whole other conversation – is the impact the change in procedure will have on the time it will take for people to get divorced.
The divorce process is currently in stages. In summary a petition is made to the court (application stage), the other party is asked for their response, if the court accepts the application Decree Nisi is pronounced and provided there are no further issues and the divorce is not contested Decree Absolute (ie divorce) is pronounced 6 weeks and 1 day later. Currently a divorce with no dispute or delay tends to take 4-6 months in total from the application being issued by the Court to the Absolute being pronounced terminating the marriage.
The new no fault procedure changes the procedure: the application is based on a statement of irretrievable breakdown of the marriage, which can be made jointly and without reference to blame or other ‘reason’ as currently required. That’s the good news, but there will be a 20-week wait from the start of the proceedings to the conditional order (as the Decree Nisi shall now be known). This ‘period of reflection’ is intended to give couples the opportunity to make sure they want a divorce or alternatively work through their differences. But the consequence of this change is that anyone applying for a divorce under the new no fault divorce rules in April won’t actually be divorced until the Autumn of 2022, at the earliest. Which means anyone thinking of waiting for April to divorce under the new rules should think carefully.
Blame removed but 20-week delay could cause other issues
So, we’ve got rid of blame and can just say ‘it’s over’, and that would seem a step in the right direction, but if you issue your application under the new scheme which starts in April 2022 you will be waiting almost 5 months from application to first order, whereas this is currently taking 5-12 weeks on average. I do appreciate divorce (as marriage) shouldn’t be entered into lightly and the 20 weeks give the couple time to reflect on whether they do wish to be divorced, but for a couple already separated and waiting for whatever reason to start the divorce does adding 5 months to their achieving a divorce help?
Such a long delay can create really difficulties for a couple ready to move on with their lives.
Divorce now or wait for no fault divorce?
If you are thinking of divorce now (I’m writing this blog in November 2021) you do need to really consider the options open to you. Use the existing divorce procedure and have to ‘blame’ the other party or apply under the new rules in April and have the extended waiting period to contend with.
When speaking with potential new clients about their separations, advising the importance of a financial clean break and making decision in the best interests of the children I’ve not before had to consider encouraging people to use ‘blame’. I’m now firmly on the fence as to whether I should be proposing blame (in the form of unreasonable behaviour or adultery). It’s a real dilemma where there is no acrimony, but the couple don’t want to wait any longer than absolutely necessary to be divorced. As always, my role will be to set out the position in law and provide all the necessary information and advice to help anyone in this position make the decision that’s right for them and their family.
Kimberley Bailey
Divorce and family law solicitor Bristol
