Parliamentary Briefing Issued By Law Society On No-Fault Divorce

The Law Society has published its Parliamentary briefing on the Divorce, Dissolution and Separation Bill, more commonly known as the Divorce Bill.

Giving its ‘unequivocal support in the introduction to the Divorce Bill, welcoming the introduction of the no-fault divorce.

Throughout discussions on the subject, the Law Society has always been ‘vocal’ in its support. However, ahead of the Bill’s second reading in the House of Lords on the 5 February, the Law Society has made several recommendations that it feels would strengthen the Bill.

“There are several clarifications that could be made to strengthen the bill and ensure that it is clear, fair and accessible. We outline these in the briefing.”

The Bill will:

• Require a statement of ‘irretrievable breakdown’ with an overall period of notice of 26 weeks, replacing the need to provide evidence of conduct or separation
• Remove the possibility of contesting the divorce
• Introduce joint applications
• Update the terms used to suit more modern and clear language

In the briefing the Law Society looks to make the Bill is ‘clear, fair and accessible’ and help strengthen the Bill, by making several clarifications.

Notice Period

Currently, the Bill proposes that the notice period should commence on the ‘start of proceedings’, which the Law Society agrees would be right for joint petitions, as both parties are aware of breakdown in the relationship and have agreed to proceed with the petition.

However, in the case of single petitions, it has been recommended that;

“the notice period should begin from the date of service when it can be demonstrated the respondent has had, or can be considered to have, formal receipt of notice.”

As well as the commencement date being from when formal receipt of notice is given, the Law Society feels that it is “proper that a respondent to a divorce is given the full 26-week period”, which would eliminate the respondent receiving the notice long after the start of proceedings.

Litigation Free Period Of Reflection

The Law Society believes that there should be a period of reflection for divorcing parties, giving them the opportunity to consider how best to separate;

“a three-month period at the beginning of the process without any ancillary finance litigation (unless agreed by both parties or in the case of the need for urgent court assistance e.g. interim financial support).

“This would not prevent parties jointly engaging in voluntary disclosure and non-court dispute resolution, or engaging the court to approve any agreed financial order or to start financial proceedings if both agree.”

The period would allow parties to seek counselling if needed, explore options such as mediation and give parties to discuss legal advice and seek financial advice.

Irretrievable breakdown

Stating that many couples, especially those who petition online, may act on impulse and not continue, the Law Society calls for irretrievable breakdown to be asserted from the initial giving of notice. This would law down that there had been irretrievable breakdown even if the process was not continued.

“We would recommend the Bill is amended to ensure that the irretrievable breakdown of the marriage is only conditionally asserted at the start of the process and only finally declared as a matter of law once the initial notice is confirmed at the end of the process, when applying for the final decree.”

Financial applications

To avoid a party suffering ‘financial prejudice’ by a final decree before the financial settlement is agreed, it has been recommended that no decree absolute can be granted until a financial order has been made.

“The final decree can therefore only be successfully applied for prior to a financial order being made, if it can be proven that there will be no meaningful financial prejudice.

“We also strongly recommend that there is very clear signposting within the online divorce and dissolution process to the need to properly resolve financial matters before final decree.”

Other Matters

The Law Society has regularly stated that the current fee of £550 for divorce applications is “too high and discriminates against those less able to afford it”.

The briefing confirmed the view given by David Hodson during the first sitting of the Bill at the House of Commons, back in July 2019.

“We hope to go to a no-fault divorce process, mostly online, with almost no or no judicial involvement, because there will not have to be any.

“The £550 is very unfair on the poor—for those on welfare benefits, there is an allowance, but it is very unfair on those above that. The great worry has to be that we have a lot of limping marriages in our society between people who just cannot afford that. There are no financial claims—there is no money to make any financial claims—but they just cannot afford to bring the divorce forward.”

It has also been recommended that the wording in the Bill be made more ‘accessible’ as well as ensuring thought is given to those who are disabled or for whom English is not their first language.

Finally, the Law Society supports signposting to support services for marriage and relationship advice, as well as non-court based dispute resolution processes.

The full briefing can be read here.