The new no-fault divorce procedure introduced in April 2022 contains a provision which seems quite pointless. Once a divorce application has been issued by the Family Court, the applicant must then wait for a period of 20 weeks before he or she can apply for the conditional order. This rule causes problems when trying to resolve the parties’ financial disputes in a divorce.
The Divorce, Dissolution and Separation Act 2020 does not provide any reason why this 20-week wait is necessary. Its inclusion appears to be a hangover from the no-fault divorce law contained in the Family Law Act 1996, which despite being passed by parliament, was regarded as such a dog’s breakfast of a law that Tony Blair’s government delayed implementation of the new law indefinitely, with it being quietly repealed after a few years.
In the 1990’s, the new law included steps designed to deter people from seeking divorces on a whim. There was a concern that if no-fault divorce was possible, divorce rates would soar. For example, the law contained a requirement that before anyone could start a divorce, they had to first attend an Information Meeting, where they would be provided with information about divorce and also about things like marriage guidance. They would then have to wait for 3 months before they could start the divorce. I recall one wag quipping that the Information Meeting could be built into the wedding ceremony so that you had it ready for when you needed it. Difficulties about the Information Meetings were one reason why the law was abandoned.
The 1996 Act also included a “period for reflection and consideration” after the statement of marital breakdown was made (i.e. an application for a divorce) and being able to apply for the conditional order.
- Period for reflection and consideration
(1) Where a statement has been made, a period for the parties—
(a) to reflect on whether the marriage can be saved and to have an opportunity to effect a reconciliation, and
(b) to consider what arrangements should be made for the future,
must pass before an application for a divorce order or for a separation order may be made by reference to that statement.
(2) That period is to be known as the period for reflection and consideration.
(3) The period for reflection and consideration is nine months beginning with the fourteenth day after the day on which the statement is received by the court.
This was generally understood by family practitioners to be a cooling off period. The purpose was to give the applicant a chance to reconsider whether he or she actually wanted a divorce after all or to think about what arrangements they should make for the future.
The current law reflects this, although the 2020 Act no longer calls it a “period for reflection and consideration”. In fact, it doesn’t call it anything at all. It is thankfully not as lengthy – 20 weeks, not 9 months and 14 days.
This can cause problems. Where parties can agree financial issues, it is essential that they obtain a financial consent order from the court, which reflects the terms of their agreement in a legally binding format. If they cannot agree, they must seek an order on a contested basis. The court does not have the power to make the order until the conditional order has been pronounced. Contested applications can take anywhere from 6 to 18 months, possibly longer, so there is usually plenty of time to seek the conditional order before the court is able to make a financial order, but not always.
In cases where there is an agreement, the parties often need to get the financial order made as soon as possible. It is unwise and risky to implement the terms of a financial agreement before the financial order has been made, but people often cannot wait months to get the financial consent order. They may be selling their house and have buyers who are keen to proceed and who might drop out if there is a delay. They may have mortgage offers that are about to expire.
For example, in April I started an application for a financial remedy order for one of my clients. The court listed a First Appointment to take place in mid-August. However, the parties then reached an agreement, and we need to seek a financial order from the court reflecting that agreement and to ask the court to cancel the court hearing (thereby avoiding the cost of the hearing) or, failing that, to get the court to make the order at the hearing. Unfortunately, we cannot apply for the conditional order until the 20-week period expires a few days before the court date. If we apply for the conditional order as soon as the 20-week period is over, it will then take the court 3 to 4 weeks to make the certificate of entitlement and to pronounce the conditional order. If I then submit the draft financial order to the court without delay, it will take the court another 2 to 4 weeks to make the order. By that time, it could be early October.
There are ways to deal with this problem. Usually, I would either get the parties to execute a separation agreement or to sign a draft order that can be sent to the court as soon as the conditional order is in place, but this is less than ideal. Nothing can be truly regarded as set in stone until the order has been made by the court.
I would argue that the need for any cooling off period is unnecessary. The old fault-based divorce system did not require this. The petitioner would apply for the Decree Nisi (the old name for a conditional order) as soon as the respondent had acknowledged service confirming that the petition would not be defended.
Why do we need a cooling off period? There does not appear to be any likelihood of a long-term rise in the divorce rate. The academic research into no-fault divorce undertaken by Professor Liz Trinder of the University of Exeter indicated that jurisdictions that have adopted no-fault divorce saw no rise in divorces as a result, apart from a temporary spike caused by people waiting for the new law to be introduced.
I have specialised in family law since January 1996, over 27 years. I would estimate that on average I have maybe 25 clients a year who are either the petitioner/applicant or the respondent. So, after 27 years, I have probably acted in about 675 divorces (as well as a huge number of cases where I have not been involved in the divorce and just do the financial stuff, or disputes between unmarried couples or disputes about children). I can probably count on one hand the number of divorces where the parties reconcile, and the divorce does not proceed.
This is not because once a divorce application is started, the parties are effectively condemned to getting divorced. It is because most people will engage in considerable reflection and consideration before they decide to separate and divorce. This mostly happens before they even make contact with a solicitor. Some clients tell me that they are not yet sure if they want to divorce, but the majority of clients have already decided that it’s definitely over and cannot be saved.
The sole ground for divorce (under both the old and systems) is that the marriage must have irretrievably broken down. If the applicant believes that it is definitely over and cannot be saved, then they are likely to stick to that view.
The 20-week wating period does nothing but cause pointless delay and additional inconvenience. As a result, most solicitors now advise clients that if their marriage has irretrievably broken down and there is going to be a divorce, then the sooner that they apply for it the better, just so that we can get the conditional order as soon as possible.
Now that no-fault divorce has been in place for over a year and we have managed to identify the glitches in the system, perhaps it should be tweaked to make it possible to apply for the conditional order as soon as the respondent has acknowledged service confirming that he or she will not dispute the application. Making people wait is pointless.
10 June 2023
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