What is the point of the cooling off period?

The no-fault divorce law introduced in April 2022 is a vast improvement on the old fault-based divorce law that it replaced. It has removed a pointlessly confrontational procedure which did nothing to save marriages and simply gave separating spouses and civil partners something extra to argue about. However, the new divorce procedure has a flaw.

Once the divorce application has been issued by the court, there is then a 20 week period before the next step can be taken. This is the application for the conditional order.

Applying for the conditional order involves the applicant (or in a joint application, the applicants) confirming to the court that the contents of the divorce application are correct and that the marriage has irretrievably broken down. The application is considered by the court without the need for any court hearing and, provided that the application is in order, the court makes a certificate of entitlement to a divorce and notifies the parties of the date upon which the court will pronounce the conditional order.

Pronouncement of the conditional order is not as grand as it sounds. Once upon a time the district judge would dress up in in all his or her finery, and then read out the list of names in open court. I suspect, apart perhaps from a court usher, that usually no-one else was present. The court would always notify the parties that they did not attend. In over 27 years of specialising in family law, I have never seen a judge pronounce the decree nisi or conditional order.

Therefore, perhaps not surprisingly, my local court stopped doing it and just pinned a list of the day’s Decrees Nisi on the noticeboard in the court lobby. There would only be an actual hearing in court if someone turned up to oppose the making of a costs order, which I suspect was very rare.

The other thing that has fallen by the wayside is publication in the local press. The Essex County Standard used to print a list of the names of all people whose decrees nisi were going  be pronounced. I found that to be archaic and unnecessary. The practice seems to have stopped some time ago, probably in the late 1990’s.

Since divorces moved to an online process in the last few years, the procedure has involved the conditional orders being pronounced in the Family Court at Birmingham; all conditional orders made in England and Wales are now pronounced there.

The problem with the new procedure is the 20 week gap between the court issuing the divorce application and being able to apply for the conditional order. Taking into account the time that the court takes to consider the application and then pronounce the order (usually about a month), that means that no conditional order is likely to be in place until about 25 weeks after the divorce starts.

This can sometimes cause enormous problems in relation to the financial aspect of the divorce. It is absolutely essential that any financial agreement is incorporated into a financial consent order, reflecting the terms of the agreement. Without this order, any agreement may not be legally binding, it cannot be enforced and, if there is going to be pension sharing, this cannot be implemented until the order is in force. Most importantly, there is no financial clean break until the court has made an order containing a clean break, meaning that a former spouse or civil partner can make future financial claims in the future.

Many people represent themselves in divorces without any involvement by a solicitor, and while they may have managed to reach a financial agreement, very few of them seek financial consent orders; it’s either too legally complex or they just don’t appreciate the need for one. These people are hugely at risk of further financial claims being made. Recent Fair Shares research by the University of Bristol Law School indicates that only about a third of divorcing couples formalise matters by obtaining a financial order.

The conditional order has to be made by the court before it gains the power to make financial orders, even where they are consent orders reflecting the terms of an agreement. The application for the financial consent order usually then takes another month or so to be approved and made by the court. By the time the order has been made, it will probably be at least 30 weeks since the divorce started.

This in-built delay can cause terrible problems in relation implementing any financial agreement. While many couples will take many months (and sometimes years) to resolve financial issues, many people have agreed matters before they start the divorce application. The safest way to deal with matters is to get the financial consent order BEFORE any part of the agreement is implemented; this avoids the danger that one party receives their share and fails to co-operate with getting the order made and/or makes a further financial claim.

However, life just doesn’t work out as neatly as that. It is commonplace for couples to want to implement an agreement without delay. For example, there may be a mortgage offer that is about to expire. One party may have a desperate need for their capital settlement immediately. There can be all sorts of other reasons why they can’t wait for the court process to run its course. These parties have to decide whether they should take a risk and implement the agreement without the order, and then get the order as soon as possible afterwards, so they still get their clean break or can then implement a pension sharing order.

The delay can also cause a problem with pension sharing orders. Such orders have to be phrased as a percentage of the fund. Pension funds tend to rise in value. Where is there is a delay in obtaining the financial consent order (which contains a pension sharing order), then the value of the pension credit that one party will receive (and the pension debit that the other will lose) will grow in value. Added to the 30 week delay in getting a financial order is the problem that good practice is to delay getting the final order for 28 days after the pension sharing order is made, and the pension fund then has 4 more months in which to implement the pension sharing order.

So, why does the 20 week waiting period between the application being issued and being able to apply for the condition order exist?

It is generally called a “cooling off period”, although it doesn’t have any kind of formal name in the Divorce, Dissolution and Separation Act 2020. I suspect that this informal name is derived from the Family Law Act 1996 which would have introduced no fault divorce, were it not for the Blair government’s decision to not bring the no-fault divorce provisions into force. The Family Law Act 1996 contained a 9 month “period for reflection and consideration”; in other words, an even longer cooling off period.

As far as I can tell, the reason why the legislation contains a cooling off period stems from a misplaced fear that if couples can divorce without making behaviour, adultery or deration allegation, this will make divorce too “easy” and the divorce rate will rise.

In fact there is no evidence that the divorce rate will rise (save perhaps for a temporary statistical spike caused by people who waited for the new law to be introduced before divorcing; research by the University of Exeter indicated  that this what usually happened in other no-fault jurisdictions). I certainly haven’t noticed an increase in couples divorcing the past 18 months.

In my view, couples do not need a cooling off period for refection and consideration before they can progress a divorce. That has happened long before they start the divorce application. The sole ground for a divorce is that the marriage has to have irretrievably broken down. Very few couples change their minds about this once one or both of them have reached that decision.

The court does have the power in exceptional cases to shorten the cooling off period, but it is not likely to do this without a very good reason. In any event, the court is so slow to deal with matters, the odds are that it would not be delay with urgently in most cases.

(Another example of an apparently arbitrary time period in divorce is the period between the conditional order and being able to apply for the final order bringing the marriage legally to an end. This is now 6 weeks. There is probably a good reason to have two stages to the divorce, rather than a system where you start the application and – boom! – you are divorced immediately. 6 weeks may be sensible period, but why has it always been 6 weeks (or under the old fault -based system, 6 weeks and a day for some reason)?

The reason for this is quite astonishing. It is apparently designed to reflect a women’s menstrual cycle. If 6 weeks has passed since the conditional order (or decree nisi), then the court can be confident (somehow) that the wife is not pregnant when the marriage is ended).

The 20 week “cooling off “ period appears to do little more than complicate and delay matters without good reason. Now that the no-fault divorce law is up and running and (for the most part) working well, this flaw should be addressed. In my view, it should be removed. The Act gives the Loird Chancellor the power to introduce a shorter cooling off period by getting Parliament to make a statutory instrument, i.e. secondary rather than primary legislation.

Under the old fault-based system, you could apply for the Decree Nisi as soon as the respondent had acknowledged service of the divorce petition. There is no good reason why a no-fault applicant should not be able to apply for the conditional order as soon as the respondent has acknowledged the divorce application.

4 November 2023

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