A New Dawn: The end of the blame game?
Divorce might be the end of a marriage, but it is not the end of a family. For divorcing couples with children, the separation is often the beginning of many years of co-parenting, in which they have to learn to bite their tongue, let things go, and remember the wording of Section 1 of the Children Act 1989 that in the event of a dispute, “the welfare of the child is the Court’s paramount consideration”.
Lawyers specializing in family law have long called for a change in the current law, last updated with the creation of the Matrimonial Cases Act (as amended) in 1973. The legislation, approaching its half centenary, as it currently stands does not permit separating spouses to apply for an immediate divorce unless one alleges fault on the part of the other. The fault alleged must be adultery, unreasonable behaviour or desertion. If they are unwilling to do so, they must wait a period of two years if they both agree to the divorce. If they do not agree to the divorce, they must wait a period of five years.
One of the main criticisms about the so called “fault based” system is that it often starts the divorce off on the wrong foot, with acrimony and hostility immediately being heightened, often at the expense of the future relationship of the couple. Clearly, when there are minor children involved, this is only exacerbated and the children risk being exposed to negative and damaging parental conflict.
Whilst potential reform and a push for ‘no fault’ divorce has been a topic of major discussion for decades now, it was the high profile and early awaited Judgment of the Supreme Court in the case of Owens v Owens  UKSC 41 that re-ignited serious discussion. Judicial commentary within the case and a clamber both in and out of the profession for change ultimately resulted in the early awaited Divorce, Dissolution and Separation Act, which received Royal Assent on 25 June 2020.
"These new laws will stop separating couples having to make needless allegations against one another, and instead help them focus on resolving their issues amicably. By sparing them the need to play the 'blame game', we are removing the antagonism that this creates so families can better move on with their lives."
Clearly, removing the requirement for one of the spouses to be to blame for the marriage breakdown immediately reduces mistrust and unnecessary conflict. It prevents the divorce being acrimonious and hostile from the outset and instead allows parties to focus on resolving the arrangements for the children and the finances, rather than becoming distracted by particulars of divorce, which are aimed at nothing more than proving to the Court that the marriage has broken down. It is hoped that this will allow greater opportunity for constructive and collaborative discussions between divorcing couples, who will no longer be required to make hurtful and often wholly unnecessary allegations against the other.
The new laws seek to encourage a non-confrontational approach, reducing conflict and its damaging effect on family relationships, particularly where there are children. The key provisions can be summarised thus:-
- Parties can now apply either together or individually, removing the need for there to be a “Petitioner” or aggrieved party.
- There is no longer the requirement to establish one of the facts (adultery, unreasonable behaviour, desertion) in support of the breakdown of the marriage. The applicant or both parties can simply make a statement that the marriage has broken down.
- The statement of marriage breakdown will be binding, meaning it is no longer possible for the respondent to the Petition to claim that they do not agree that the marriage has broken down.
- It will only be possible to contest the Petition on the legal validity of the marriage, procedural compliance, jurisdiction, fraud or coercion.
- The legislation introduces a minimum period of 20 weeks from petition to Decree Nisi and maintains the 6 weeks from Decree Nisi to Decree Absolute. Arguably, therefore, the new system could have a longer “minimum” time from Petition to Decree Absolute than under the current system, giving parties the opportunity to resolve the associated issues stemming from the marriage breakdown.
- There has been a shift towards more modern terminology, making the process more accessible for Court users and litigants in person. A Petition will become an Application, Decree Absolute will become the Final Divorce Order and Decree Nisi the Conditional Divorce Order.
- The Act will apply to both divorce and civil partnerships.
Undoubtedly, the new law will bring about a number of positive changes:-
- Reducing hostility as the requirement for one spouse to blame the other will be dispensed with. This amendment is likely to be particularly pronounced with the removal of so called “behaviour” Petitions, where antagonistic particulars of divorce can so often cause increased conflict.
- Agreeing who will be the Petitioner and what the particulars of behaviour will be will no longer incur costs for the parties.
- Parties may be more likely to enter into mediation or other forms of alternative dispute resolution.
- The process will be simplified and streamlined, increasing accessibility for individuals acting in person.
- Couples who wish to consensually divorce will no longer have to wait for two years after their separation to do so. This will eliminate the financial burden on spouses and the potential negative impact on the children of the couple who are separated but forced to remain married for two years.
Family lawyers have long bemoaned the current law and the “blame” culture encouraged and required by the current system. Parties too, many of whom are agreed that the marriage has broken down, are surprised and disappointed to find that they are then pitted against each other from the outset. The upcoming changes are intended to encourage (and, indeed, require) a more conciliatory and less combative approach to proceedings and this can only be encouraged. Let’s hope that the new legislation can persuade not only the divorcing couples but also the practitioners they instruct to take a less combative approach and to join the drive to “be kind”.
Emily Foy is a Senior Associate Solicitor in the family department at Payne Hicks Beach. Emily's key specialism is in high net worth financial settlements, particularly those with an international element, and she has a growing practice in the particular legal complexities faced by the modern family.