No-fault divorce: A long time coming, but worth the wait

There is an ancient English tradition, now copied in fairgrounds, by which people who have done something wrong should be tied up to a wooden stake and have objects thrown at them. This would lead to general merriment for the spectators; and to misery for the person used as the object of the humiliation.

I have been thinking about this humiliating ritual in considering the old divorce law, which expired unlamented on 5th April 2022. The old law provided for “petitions” for divorce, which generally set out a menu of complaints about the behaviour of a husband or wife, or salacious details of adultery. This is now gone, thankfully.

Welcome to the new law of divorce for England and Wales, which has applied since 6th April 2022 and allows any husband or wife to make an “application” for divorce. He or she can do that if he or she believes that the marriage has broken down irretrievably – without real hope or expectation of reconciliation. This change has been a great success.

We now have a divorce process which lasts at least six months. The hope is that within that time, the couple will be able to reach agreements about their finances and their children. With the final divorce order, ending the marriage, coming six months after the divorce application.

It is realistic to give the couple a six-month period to sort out some of the most important decisions that they will ever make in their lives. The best decisions are not those made on a rollercoaster.

Children obviously always come first, and it takes time to sort out the right arrangements for them. Likewise, financial disclosure will need to be provided, and the couple will need time to consider what financial arrangements are the most fair and appropriate.

One of the many reasons for the great success of no-fault divorce is that the process can begin as benign and forward-looking as may be possible in the circumstances. The first discussion – at least between lawyers – is not about who is going to “petition” and what objectionable or salacious detail will be put in the petition. Recrimination is the graveyard of coparenting and co-operation.

Instead, attention goes straight to the positive and constructive focus on how to resolve the matters at issue, often centred around children and finance. A wholly different mindset is engaged – to the benefit of the divorcing couple.

Prenups are also enforced when they are fair, therefore saving time and cost.

Furthermore, the industry is engaging more and more with alternative forms of resolution – we are approaching a time of compulsory mediation in relation to finance and children cases. This is a great change as mediation works so very often.

Additionally, the family law system is pouring attention on to arbitration as a much better alternative to court – quite rightly.

A good friend of the writer wrote a textbook called “The Chaos of Family Law”. I could not disagree more with a thesis that family law policy is random and chaotic.

Multiple ways are found by good family lawyers to counteract the delays in court systems and bad legacies of the pandemic, and the no-fault reforms and the emphasis of taking as much sting as possible out of divorce is replicated wherever good lawyers practise family law.

There is so much positivity in family law – and so it’s an exciting time to be a family lawyer.

No fault divorce took a long time coming. But, boy, it was worth the wait.

Simon Bruce is a partner at Dawson Cornwell

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