It has now been almost a year since the change in divorce legislation to introduce “no-fault divorce” in April 2022. Much of the focus over the last year has been the zeitgeist of change away from fault based divorce applications and towards a modernised language (saying goodbye to using anachronistic terms like Decree Absolute, Decree Nisi or Petition and welcoming the clear language of Final Order, Conditional Order and Application).
However, it has become apparent that the impact of this legislation is broader than it first appears and may have unintended consequences, all due to a seemingly minor change to the Family Procedural Rules. Paragraph 6.6A was introduced in April 2022 and now requires that a divorce application is served by an applicant within 28 days, but what are the consequences if breached? This provision may be a drop in the water compared to the other large scale changes of no fault divorce, but has it hailed the end of animosity in proceedings and forum shopping, or just made it all the more attractive?
The old ways – forum shopping and delay in service
Before Brexit and no fault divorce legislation, EU regulations governed cross-jurisdictional disputes in Europe and therefore issues were decided by a first in time rule i.e. if the applicant petitioned in England first, then this would be the jurisdiction where proceedings would take place. This led to petition races and forum shopping, as parties to the proceedings desperately tried to have their petition issued in their favoured jurisdiction first (inevitably being either the jurisdiction with the most generous or least generous financial provisions on separation).
In some ways, this provided certainty – it was immediately clear where proceedings would take place once the dates of the competing divorce petitions were compared.
However, it became common practice in England for parties to quickly obtain an issued application in their preferred jurisdiction and not serve it on their spouse immediately.
Often there were strategic or personal reasons why parties may wish to delay service on the petition, so that their spouse would not know until too late that the other party held the trump card of the first-in-time issued petition. Usually, such a delay was strategic as it delayed opportunities for legal advice or for forum shopping (given the first in time rule), and would delay the initiation of financial proceedings (as these cannot be initiated until the divorce has been issued and the jurisdiction seised).
Holman J commented in Chai v Peng (2014) EWHC 1519 (Fam) that:
”to file [a divorce petition] prematurely is the equivalent of laying one’s towel at dawn upon the sun lounger of the English court and returning at high noon to bask in the warmth of the law of England and Wales on divorce and financial remedies”.
Despite this lamentation, Moyston J in Thum v Thum (2016) EWHC 2634 (Fam) confirmed that there was no formal time limit for service and therefore was of the view that four months delay from issue to service amounted to acting with “reasonable promptitude” such that there could be no abuse of process by delaying service (paragraph 18 of judgment).
Brexit – a blow to forum shopping and an increase in uncertainty
When England left Europe, it moved away from operating under the first in time rule and moved to deciding such disputes by “forum non conveniens” i.e. which is the more convenient and appropriate forum to hear the divorce case. There are a variety of factors that the Court will consider in such a case, including:
- Where the assets are held
- Alternative courts put forward
- Where children are attending school
- Cultural background
This has created more uncertainty for cross-jurisdictional issues and forum shopping lost some of its attraction where the connection to a particular jurisdiction preferred for financial reasons was nominal. However, it will also often still remain relevant where the first divorce application was issued and, given that there remained no rule for mandatory service of the application, this meant the secret first in time unserved application still had the desired impact and the practice continued.
No fault divorce and change in service requirements – death knell to forum shopping?
Amongst other changes, the 2022 legislation introduced paragraph 6.6A to the FPR, being a time limit to service of the divorce application of 28 days. This seems to hail in much needed change to underhanded divorce tactics of delaying service, and be in line with the general intention of the legislation to reduce animosity and tensions in divorce proceedings.
However, crucially, what remains untested, is whether breach of this requirement for service would hold any significant consequences and therefore be an effective deterrent. If one were to delay service and only serve the divorce application 19 weeks after issue, under the new legislation you could apply for Conditional Order one week later (so long as service could be deemed or acknowledged), and the final order to dissolve the marriage could be applied for a mere six weeks and one day after the pronouncement of the Conditional Order. Hypothetically, this could mean that a respondent could receive an application and seven weeks after service their marriage could be dissolved. This would give them very little time to seek proper legal advice and they would incur the financial consequences of the Final Order potentially being granted before financial proceedings were resolved. It can be seen how this loophole could be exploited by a particular vexatious applicant.
So, what would be the consequence of breaching the time period for service? Certainly, there is no legislated consequence for an apparent breach of the service requirements (beyond, potentially, a costs order for additional costs incurred), and it is notable that the requirements for requesting an extension to service under 6.6B seem to anticipate that one can apply for an extension where there is good reason after the 28 day period. In his article dated 11 February 2022, “The procedure for England’s new divorce law”, David Hodson reflects on the parliamentary discussions around the change in legislation and notes that parliament confirmed that the court would not be able to amend the timetable to Conditional Order and Final Order.
“What was made explicitly clear in the parliamentary discussions is that the court in those circumstances would not thereby extend the 20 week time….This seems therefore a weak and ineffectual provision”
However, whilst this remains untested, it would seem possible that delay beyond the 28 days would possibly amount to an abuse of process under Thum v Thum reasoning and therefore that the application might be struck out if deliberately delayed. While 6.6B(3) allows the applicant to assert “good reason” for failing to comply with the timelines, as reflected upon in the submissions before Moyston J in Thum v Thum, it seems likely that an extension would not be granted by the Court when having regard to the very similar provisions under the civil procedural rules (particularly r7.6(2)) that an application to extend time must be within the time period specified by service of an application. It is not clear therefore what would amount to a “good reason” to delay service.
Time will tell how the court will deal with conduct of this nature, but it does appear that – if good practice and the letter of law is to be given due and proper regard – delay tactics and forum shopping has lost its attractiveness. It will fall to professionals to uphold this integrity in practice and allow the noble intention behind the legislative change to prevail so that parties can move away from animosity and vexatious actions in the divorce process.