The new divorce law and why it might not be a good idea to wait

The government has now announced the form that the new no-fault divorce law will take.

The sole ground for divorce will remain that the marriage has to have irretrievably broken down. However, the five alternative “facts” which are currently relied upon to show that the marriage has irretrievably broken down – adultery, behaviour, desertion, two years’ separation with consent or five years’ separation without consent – will no longer be used. Instead, the petitioner will simply have state that the marriage has broken down irretrievably. There will also be the option of a joint application for a divorce, rather than one party divorcing the other.

The divorce process will now take a minimum of six months, including a period of twenty weeks for reflection after the divorce proceedings have commenced followed by the making of the Decree Nisi. The Decree Absolute can be made by the court six weeks later, thereby bringing the marriage legally to an end.

I anticipate that the terminology will change. Expressions such as decree nisi and decree absolute are meaningless to non-lawyers (and increasingly meaningless to the generation of lawyers who were trained to speak in plain English and didn’t learn legal Latin). When no fault divorce was due to be introduced during the 1990’s in the unsuccessful Family Law Act 1996, expressions such as divorce petition, decree nisi and decree absolute would have been dispensed with. In their place, there would have been “applications for divorce, conditional divorce orders and final divorce orders”. The Blair government’s decision to not implement the new divorce law led eventually to the eventual abolition of the relevant parts of the Family Law Act 1996 a few years ago. However, it is worth noting that the divorce forms do actually already use these expressions. The divorce petition describes itself as being an application for a divorce and the application for the decree nisi and the decree absolute do include the options of “conditional” and “final” orders, even though the current law has never actually adopted those expressions.

Most importantly, it will no longer be possible to oppose a divorce. This is entirely sensible. Defended divorces are incredibly rare. In the absence of an admission of adultery, people who do not wish to wait to divorce until they have been separated for at least two years will usually seek a divorce on the ground of their marriage has irretrievably broken down due to the behaviour of the other party. There are only a handful of defended divorces which go all the way to trial every year and only one respondent has successfully defended a divorce in recent memory. The frankly ludicrous outcome of that case helped finally bring some much-needed public attention to the antiquated state of our current law.

There is cross-party support for no fault divorce in Parliament and it is likely to become law. The government has announced that it will introduce legislation as soon as possible, although the current political turmoil due to Brexit and the distinct possibility that we may have a change of government and an election in the very near future could cause some delay; if an election is called, all bills then passing through the House of Commons come to a dead halt and have to start again from scratch once the new parliament has been elected.

There will of course be those in Parliament and elsewhere who argue against the introduction of no-fault divorce law. Sir Edward Leigh MP has argued strongly against it in the past. The Coalition for Marriage argues that no-fault divorce will allow cheating or bored spouses to simply walk away; the fact that it is already very easy for those spouses to obtain a divorce using the current system doesn’t seem to have occurred to them.

On The World At One on BBC Radio 4 today, a representative of The Christian Institute claimed that no-fault divorce would lead to a huge increase in the divorce rate and that it was reasonable to ask people to provide a reason why they want a divorce. However, there isn’t a shred of evidence to support that assertion and I suspect that the commentator has a moral objection to divorce, rather than any real knowledge of the subject. In fact, all the research carried out by Professor Liz Trinder of The University of Exeter is that there is no increase in the long-term divorce rate in countries which have introduced no-fault divorce.

Another commentator on TWAO also argued that it is important that people are given “agency”; as far as I can tell, this means that she felt that it was important that people have their say, especially where a divorce may have come out of the blue. However, this misses the point completely; the current system only allows the petitioner to say why they want to divorce; respondents do not get to have their say unless they either defend the divorce by filing an answer or decide to issue a pointless and expensive cross-petition for divorce. I accept that people might find having their say cathartic – but court proceedings are not the venue for that. Justice should be applied dispassionately.

It is argued by some that it is unfair for one party to be able to insist upon a divorce if the other party does not wish to be divorced. I can understand that it is possible that for people in some communities, particularly very religious communities, there may possibly be an enormous stigma attached to being a divorcee, and I am not unsympathetic to that. However, if one party no longer wishes to be married to the other party, the reality is that the marriage has irretrievably broken down and they would be able to divorce now using a fault-based ground or waiting till they have been apart for five years when the respondent’s consent to a divorce is not required and the only defence is that it might cause the respondent grave financial or other hardship.

In this day and age, the respondent would struggle to prevent the petitioner from obtaining a divorce one way or another. It is therefore better that the divorce takes place in a no-fault basis. A fault-based divorce will do nothing, but add additional unnecessary hostility to an already difficult situation. It also arguably makes it much less likely that the couple might reconcile; once the petitioner has served the respondent with a petition alleging that he or she has behaved inappropriately, it is difficult to see how that helps a couple reconcile.The reality is that there is no sensible reason to defend a divorce. If the marriage is over, it is over. Once a body has died, it must be buried. There is also no sensible reason to retain fault-based divorce laws which are older than I am. The allegations contained in divorce petitions make absolutely no difference to the financial outcome of the divorce, nor are they relevant in resolving any disputes about arrangements for the parties’ children. If anything contained in the divorce petition is in anyway relevant to financial or children disputes, the mere fact that the respondent has not defended the divorce does not mean that the court assumes that the allegations are true. Furthermore, the “facts” of adultery or behaviour contained in the divorce petition may not truly reflect the reasons behind the marital breakdown. It is possible to divorce on the basis of adultery where both parties have long concluded that the marriage has irretrievably broken down and where the adultery did not begin until after that time. The court knows that what is in the divorce petition is not the entire story. Furthermore, in my experience there are very few marriages that break down because it is entirely the fault of one party and not the other.

I am already starting to receive enquiries from prospective clients about the new no-fault divorce law. I have also noticed a recent increase in the number of separation cases where parties are deciding to simply separate and not divorce for the time being. There been relatively few of these over the last few years, and I was initially surprised to see a surge in new clients who wish to have a separation agreement and not divorce for the time being. Usually in a separation case, the plan is for the parties to separate for a period of two years in divorce on the basis of two years’ separation with the consent of the respondent to the divorce. However, I have noted that my recent clients generally tell me that they accept the marriage is over and that they will divorce eventually, but they are very vague about when this will happen.

This may reflect the evidence gathered by Professor Trinder. Although her research shows that there is no long-term increase in the divorce rate in no-fault divorce jurisdictions, there is some evidence of a spike in divorces immediately after the new law is introduced. The explanation for this appears to be that when people are aware that the law is going to change, they wait until the new law is introduced before grasping the nettle and starting the divorce. I suspect that the recent increase in separation cases that I have seen may be clients who will be part of that eventual spike.

It is, however, a mistake to not seek legal advice until you have been separated for a long time or until the new divorce law has been introduced. There can be good reasons to get on with the divorce immediately rather than wait. For example, I encounter too many cases where couples separate and one party remains living in the house for the time being without transferring ownership. Two years later, one or both of them gets around to seeking legal advice and at that stage the spouse who has vacated may receive the unpleasant news that as the or she has not occupied the matrimonial home for a period of over 18 months, there may be a capital gains tax bill in the event that it is sold or transferred to the other party because the spouse who vacated can no longer rely on the primary residence relief. The spouse who still lives there will not get a tax bill, but they will be faced with an argument by their other spouse that their tax bill must be taken into account when dividing the assets.

This unpleasant surprise is going to soon apply to the vast majority of divorces because the 18 month period will fall to 9 months in April 2020. There are not many people who divorce and who own their own homes who will not fall foul of this because it is very difficult to conclude a divorce within nine months. Even once the new divorce law allowing to people to divorce in no less than six months is in force, they may still fall foul of this because it generally takes between 6 to 12 months, possibly longer, to resolve financial issues. (It should be noted that the new law will state that a divorce will take a minimum of 6 months; sorting out financial issues generally takes longer and it is good practice to wait until all financial issues have been resolved and a financial order has been made before seeking the Decree Absolute, largely for reasons to do with pensions).

It is therefore vitally important that if your marriage breaks down and/or if you separate, you should seek legal advice from a specialist family solicitor at an early stage, even if you then decide not to take any further action for the time being.

9 April 2019

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