The Good Divorce?

The Good Divorce?

The Good Divorce?

The Split – the most watched drama of 2020. Albeit a dramatised version of events, The Split anticipates the possibility of ‘a good divorce’. Credit: Tereza Cervenova courtesy of SISTER.

Law changes all the time but the concept of ‘No Fault Divorce’ introduced this year in England and Wales, where no period of separation is required, reflects a seismic change to the notion of blame in relationships. Bhini Phagura and Anna Sutcliffe discuss the changes in England and Wales; Molly Bellamy considers this in the context of changing perceptions, what it means for our society and its significance for the rest of the UK.

No Fault Divorce

The Divorce, Dissolution and Separation Act 2020 came fully into force on 6th April 2022. Most notably this involved the introduction of the long-anticipated “no-fault divorce” provisions. Many in the family law sector have been campaigning for decades for an end to the previous regime, under which parties were forced to either attribute blame for the breakdown of the relationship or wait a period of 2 years before divorcing. ‘Resolution’, a community of family justice professionals who work to resolve issues in a constructive way, has hailed the changes as the “biggest change to divorce laws in our lifetime”. It is hoped that this new regime will help to encourage a more constructive approach to separation and avoid raising tensions from an early stage.

What has changed?

The most notable change to the procedure from April 2022 onwards is that the application need only confirm that the marriage has irretrievably broken down. It is no longer necessary for the applicant to particularise the reasons for the breakdown by citing adultery, unreasonable behaviour or a particular period of separation as had previously been required.

This statement that the marriage has irretrievably broken down will be conclusive, meaning that the possibility of disputing/ defending the divorce is removed (except on limited technical grounds such as fraud or coercion).

The language of divorce has also been simplified, in the hope that this will make the process more accessible. The key terms are set out below:

The Petitioner has become the Applicant

The Divorce Petition has become the Application

Decree Nisi has become a Conditional Order

Decree Absolute has become a Divorce Order

Defended proceedings are now disputed proceedings (and only available on limited technical grounds in any event).

For the first time, couples will be able to submit their application for divorce on a joint basis if they choose to do so, although they will be able to change this to a sole application at a later date if necessary. The application will be filed online and there will be a minimum six-month period between the lodging of an application and the final Divorce Order (20 weeks from application to Conditional Order and a further 6 weeks to the Divorce Order).

Why has it taken so long?

“No fault” divorce was first proposed as part of the Family Law Act 1996 but was abandoned due to concerns over the workability and complexity of the precise scheme put forward. It is difficult to understand exactly why it has taken so long for new proposals to work their way onto the statute book, particularly given the widespread recognition throughout the family law profession that acrimonious divorces are detrimental to the parties involved and their children.

In reality, the Courts have compensated for the previous regime for many years by adopting a light-touch (and some might say intellectually dishonest) approach to reviewing particulars pleaded in support of “unreasonable behaviour”, and parties have been encouraged to file petitions with relatively anodyne particulars in order to avoid inflaming tensions.

The issue was brought back into the spotlight in the muchpublicised case of Owens v Owens [2018] UKSC 41. Mrs Owens petitioned for divorce citing particulars of Mr Owen’s unreasonable behaviour. Mr Owens defended her petition, stating that his behaviour had not been unreasonable in the context of their marriage. The case found its way to the Supreme Court, following both the judge at First Instance and the Court of Appeal finding in favour of Mr Owens and denying Mrs Owens the divorce she was seeking. The Supreme Court noted that they were left feeling uneasy by the decision, but recognised

it was not for them to change the law laid down by Parliament. They refused Mrs Owens’ appeal. However, a government consultation soon followed which has ultimately resulted in the long-awaited changes outlined above.

Resolution welcomed “biggest change to divorce laws in our lifetime”. Credit: Resolution.

How will the changes benefit couples?

The exclusion of fault in divorce proceedings will encourage couples to reach an amicable settlement without needing to allocate blame. This will allow separating couples to focus on the more difficult aspects of divorce, such as their finances and child arrangements.

The no-fault divorce will reduce conflict especially where couples have simply drifted apart and want to divorce. Previously, couples were being caught up in the “blame game” instead of focussing on agreements to move forward.

Even when separation is relatively amicable, the process of apportioning blame can quickly change things. The less conflict that arises from relationship breakdowns, the better it will be for any children concerned, and the easier it will be for parents to have a positive approach to parenting.

If couples are able to begin the separation process in a positive way, their approach to parenting and reaching an agreement in relation to their finances, is more likely to be harmonious. This, in turn, may have a positive impact on them and importantly on any children involved, who, as a result of the acrimony between parents, suffer much emotional harm during a divorce.

The new divorce laws of England and Wales have only passed into law recently, so time will tell as to whether the changes are successful. However, any process that avoids animosity and confrontation from the outset, is a positive one.

Anna Sutcliffe

Anna Sutcliffe

1 King’s Bench Walk

Bhini Phagura

Bhini Phagura

Rayden Solicitors

Changing Perceptions

There has been a discernible shift in relation to Divorce, across the three jurisdictions of the UK – albeit unevenly, from blame to support. This shift has been influenced by public perception of divorce, of marriage and what constitutes a family in the 21stst century. Societal changes often take many years to be reflected in the law but a consistent theme in family law is manifest in divorce procedures, including mediation, FDRs, cognisance of pre-nuptials, on-line applications and the interpretation of grounds. The shift is shaped by the language being used to inscribe a new moral ethic that diminishes the taste for public litigation in preference for lower cost low solutions which also protect the family unit albeit in its changed form. This alters the role of family lawyers.

There are numerous examples of the blame culture following marital breakdown and traditionally the blame fell on the wife or the mistress, such as the shaming of the Duchess of Argyll or Monika Lewsinsky, and many more. The fall in reputation as a result of divorce or an ill-fated romance meant that many never lived their lives to the full but had to skulk on the edges of society. A shift to a more supportive style of managing divorce is however the emergent message of conversations in circulation.

Is it realistic to imagine the possibility of a Good Divorce? I explore this with the help of two senior family lawyers – who note an underlying raft of family-related issues which are completely ignored by some jurisdictions, because they do not fit in to a neat box with ‘marriage’ on the lid.

Karen O Leary, is a senior partner at Caldwell and Robinson, private family law and child firm. She is a tri-jurisdictional qualified lawyer, practising in, England and Wales, Northern Ireland and Republic of Ireland. Karen explained neither NI nor The Republic of Ireland have legislation for a ‘no fault’ divorce. However, in these jurisdictions as in England and Wales there are alternative dispute resolution systems which are encouraged. Karen highlights one of the far-reaching shifts.

KOL: So I think from a family law perspective, the most radical change has been the increasing awareness of what domestic violence is, and the different forms that it takes. I think we have so much further to go in educating both practitioners and Judiciary, and whilst I think there are some excellent judges, there are some who are very poor in their understanding and perceptions of what constitutes domestic violence. The other important issue within UK with the exception of Scotland is, what is ‘family’ and where the law is not in keeping – is cohabiting couples. It is dreadful that there is no protection, And you know, we are not talking about a small minority. We are talking about a significant proportion of families who are in that type of unit.

There is a significant portion of society for whom marriage is outmoded and has no relevance to their lives. This ranges from the younger to the older generation; the fact that there is no protection for cohabitees is not common knowledge. Karen’s view is that there is no political will to confront the changing notion of family and this affects not only divorce but inheritance, succession and tax.

KOL: The political dictate is – you have to be married in order to avail yourself of all those exemptions, or benefits, or whatever... That can’t be right!

Interestingly, the Republic of Ireland has had cohabitation laws since 2011. If you are cohabiting for a period in excess of two years, then you have protections and entitlements.

So what is a family today and how should the law manage a 21st century ‘relationship breakdown’? Is there such a thing as a Good Divorce? The BBC legal Drama, The Split anticipates a happy ending in the final episode, of living happily ever after… not marriage – but divorce; it leaves us with the possibility of a Good Divorce…

KOL: And there is such a thing! Yes there absolutely is! It’s about timing being right, and it’s about both parties being in the right frame of mind to be prepared to compromise, to be prepared to leave things that might irritate them aside and to focus on ultimately what they what they want for themselves and their family… And that is where, to be fair, good professionals should be able to assist our clients in getting to that place.

The Split. Credit: Courtesy of SISTER.

Marika Franceschi, a partner at MacRoberts LLP law firm in Scotland, specialises in family law. I asked her what was distinctive about Scotland’s Divorce laws in comparison to that of England and Wales.

MF: I think the range of outcomes is generally not as broad in Scotland as it is England and so it is often not worth the risk of going to court for financial cases. The parameters that you’re working within are relatively narrow, the cost is significant, and we tend to not be awarded expenses in family cases in Scotland, so that really acts as a deterrent to litigation.

As in all jurisdictions, cost is a significant factor which needs to be borne in mind.

MF: …the reality is that for most people, it is a constant balancing of cost vs benefit. It’s about having regular commercial discussions with clients about their options saying, ‘Okay, these are your options, but it’s likely to cost X . …and the risks are X, Y, Z – and so we have to weigh this up. Is it worth it for you to take that risk? How important is it for you to pursue this particular argument? Or should we focus on these other arguments instead?’

Like Karen, Marika too is a great proponent of ADR.

MF: I think with very few exceptions, Court should really be a last resort in family cases. I think very few families ever truly recover from a litigated divorce. …Sometimes, people talk about mediation as a softer easy option. It is not the easy option. In some ways, it’s more difficult because you have to sit down and work through things with the one person that you really don’t want to talk to sometimes. However, if you can get through that and get to the other side, you stand a much better chance of being able to move forward as a family in some way, you can still attend your children’s graduation ceremonies and weddings without creating this horrible awkwardness that adult children sometimes feel in these situations.

…the motivator is to try and avoid the cost and the risks of litigation as you have no control over the outcome if you go into court! By contrast in mediation or collaborative law, you’re actively working towards an agreement that you are both stakeholders in, you are both party to all those discussions, nothing substantive happens without your presence and you are engaged from start to finish. Nobody makes a decision for you, you make the decision together.

…and , I also think there has been a change in people’s willingness to have that fight. You know, I do genuinely believe that more and more people are trying to find a better way to divorce. Far more clients are now coming to me and saying, ‘I really don’t want to go to court. I really don’t think that’s best for the children’. I don’t know how much of that is because I attract that type of client because I’m forever telling people that I don’t think court is the right answer, but I certainly have noticed an increase in those types of inquiries.

For Marika, the notion of the modern family includes cohabitants.

MF: ….cohabitants in Scotland do have some rights, but they’re nothing like as extensive as those of spouses and they are not automatic. They have to be claimed and the options available are more restrictive than the options available to spouses but I think compared with a lot of countries across the world, we’re actually quite good in that (here) at least our cohabitants do have some rights, but it’s certainly something that requires some updating and is currently under review.

Our artist-soothsayers, have foretold this discursive shift in their oracle plays on the BBC through some beautifully observed legal dramas. They have also co-constituted it: A Very British Scandal (writer Sarah Phelps) is filmed through a critical 21st century lens of that historical case featuring the shaming of a high profile woman the Duchess of Argyl, in the early 20th century; Impeachment (Sarah Burgess Flora Birnbaum) is a retrospective indictment of the ‘slut shaming’ of a high profile woman Monika Lewinski, in the late 20th century; The Anatomy of Scandal (Sarah Vaughan) is a critical lens of the structural violence that exists in the Justice system today in relation to gender discrimination; The Split (Abi Morgan) – the third most watched drama of 2020, predicts the necessary possibility of A Good Divorce…

“And there is such a thing!”.

Molly Bellamy

Features Editor & Academic