Improper petitions: is it their fault?

JUNIOR LAWYERS DIVISION

Improper petitions:is it their fault?

The Judgment in Re Yorston and others (Matrimonial Causes Act 1973: Improper Petitions) [2021] EWFC 80 1 makes for an interesting read.

In the recent High Court Judgment, 28 divorce petitions lodged by the same company were dismissed after finding that the particulars of behaviour were absolutely identical to each other.

The petitions had been referred to the High Court by the Judge in charge of the Divorce Unit at Bury St Edmunds. It was found to be “quite impossible for each of 28 respondents to have behaved in exactly the same way as the other 27” and all 28 petitions were dismissed. 2

Currently, the law requires parties to demonstrate that one of them is to blame for the irretrievable breakdown of their marriage, unless they wait for a period of two years separation or more. This can make an already emotionally charged situation worse, leading to denials and counter claims, slowing down the process and costing more money.

It is for this reason that divorce petitions rarely outline the many complex reasons for a marriage breakdown. A YouGov survey found that “more than 27% of couples citing behaviour admitted that their claims were not true but were the easiest way of getting a divorce”. 3

Thankfully, the law is set to change under the Divorce, Dissolution and Separation Act 2020 on 6 April 2022 to herald a new era of ‘no-fault’ divorces in which parties do not have to place blame. ‘No-fault’ divorces were first introduced to the political agenda in 2015 and were passed through the House of Commons in June 2020.

The interested party in the case of Re Yorston and others (Matrimonial Causes Act 1973: Improper Petitions) [2021] EWFC 80 stated that they were trying to use amicable and neutral language that did not point blame, in a move towards ‘no-fault’ divorces.

Admittedly, changes to the out-dated fault-based divorce system are long overdue, however the High Court Judgment highlights that until ‘no-fault’ divorces are established under the law, the irretrievable breakdown of the marriage must be proved in the traditional way. The requirement to prove unreasonable behaviour is no empty formality and parties must continue to put forward genuine reasons to justify a divorce.

In his Judgment, Mr Justice Moor had even considered referring the interested party to the Director of Public Prosecutions on the basis that providing 28 identical and generic divorce petitions was potentially a crime of perverting the course of justice, however he concluded that there would be insufficient public benefit and therefore disproportionate to do so.

This Judgment emphasises two issues: the increasing popularity of DIY divorces and the pressing need for a ‘nofault’ system.

As a result of the legal aid cuts to family law services and the launch of an online application system, we are seeing more and more people now undertaking off the shelf DIY divorces. This can cause problems down the line such as divorce petitions being sent back or defended, increasing the time a divorce takes and raising frustration for all parties involved. A study conducted by Resolution in 2017 found that 40 percent of all DIY divorce applications had to be sent back because of an error or incomplete application. 4 Admittedly this statistic is somewhat outdated, but the message is clear nevertheless.

Early legal intervention is often key for parties to have a positive and constructive outcome. However, with the increasing number of online websites that sell parties the off the shelf tools to file a “cost-effective”, “straightforward” divorce, it is unlikely that us family lawyers will see the end of DIY divorces and the negative implications that they might have on parties.

In more positive news, family lawyers can rest assured that the legal process of divorce will be fundamentally transformed in April 2022 with the introduction of ‘no-fault’ divorces, diminishing the need for confrontation within the family justice system. The tangible changes we will see include parties being able to apply jointly for a divorce and one spouse (or both) to send short statements to the court as conclusive evidence of the irretrievable breakdown of the marriage, which cannot be contested. There will be a minimum of 20 weeks between the divorce application and conditional order (decree nisi) and another 6 weeks between the conditional order (decree nisi) and final order (decree absolute), so that couples have an opportunity to discuss and finalise practical arrangements. So, while the breakdown of their marriages may not be the fault of the parties; accepting the risks that come with DIY divorce packages might continue to be. ■

Felicia Munde

Felicia Munde

Solicitor

Dawson Cornwell

1. https://www.bailii.org/ew/cases/EWFC/HCJ/2021/80.html

2. Re Yorston and others (Matrimonial Causes Act 1973: Improper Petitions) [2021] EWFC 80

3. No Fault Divorce – Tuesday 13 October 2015 – Hansard – UK Parliament

4. https://resolution.org.uk