No fault divorce – working on the sequel

There has been a lot of discussion around no fault divorce recently- out with the old and in with the new… but it’s never that simple is it? In this Blog, Emily Kozien-Colyer cuts through the “white noise” and places this welcome change into context.

Even in a perfect world where everyone was equal/I’d still own the film rights and be working on the sequel – so sings Elvis Costello in his song about love, betrayal, and perspective in Everyday I Write The Book. Most people could write a book telling the story of their relationship(s). In many ways the statement in support of a divorce petition based on unreasonable behaviour provided an opportunity to do so. This is no longer possible with the change in law, and parties are encouraged to look to the future, to work on their sequel.

No fault divorce – why does it matter?

Fundamentally it is hoped that the change will help to reduce conflict, leaving both parties in the best possible shape to rebuild their lives post-divorce and ready to write their sequel. Who wants the first exchange in the process to place blame on one of the parties before even getting to discussing the nitty gritty of money and arrangements for children? It is unsurprising that in many cases this served to increase conflict and acrimony. In all honestly, however, this change in law will not result in a wholesale change in attitude or feelings. The way in which parties approach any of the issues (money, children, divorce) depends on them, their personalities, their experiences, their perspectives. We have analysed these issues in separate articles

It is right, and in some cases it will help, that by the removal of any analysis or assessment of fault the legal framework does not exacerbate the issues between parties. Particularly given that ‘fault’, in terms of a moral assessment, played no part in the legal process on the consequences of divorce. 

No fault divorce – a modern perspective

If anything, England, and Wales is somewhat behind the times in making this change to divorce law. There have been aspects of no-fault divorce in jurisdictions across the world for many years.

All states of America have some form of no-fault divorce. Seventeen states are fully ‘no fault’ and there is no option between a fault-based divorce and a no-fault divorce.

No fault divorce – what does it mean?

Under the new ‘no fault’ divorce law an application for divorce (or the dissolution of a civil partnership) will be based on a statement that the marriage or partnership has broken down ‘irretrievably’.

Previously that statement (or ground for divorce) needed to be based on one of five facts, three of which (unreasonable behaviour; adultery; and desertion) assigned blame or fault on the respondent to the divorce petition or application.

The change in law also involves various procedural and other changes, including:

  • removing the possibility of contesting a divorce petition
  • introducing the option of a joint application
  • changes to the rules on service (or how and when the respondent to the application in the case of a sole application is notified of the proceedings)

No fault divorce – what does it not mean?

The family court deals with divorce; finances; and matters relating to children in separate court proceedings. That has not changed under the new law. It is not possible to issue an application (whether jointly or separately) that deals with all consequences of the breakdown of a marriage. There is of course some interplay between these proceedings, but often not in the way that might be expected by the public.

  • The court cannot deal with financial issues until the parties issue an application for divorce
  • Where there are children to consider, their living arrangements and arrangements for their care should ideally be decided and settled (either by agreement or by the court) before financial issues are resolved

Planning for the future – together and without delay

One of the most important aspects of the change in divorce law is that it enables couples to take action together, if they want to, and as soon as they are ready.

  • The ground for divorce (which is the statement that the marriage has broken down irretrievably) does not need to be evidenced by a period of separation
  • Couples can issue a joint application and instruct the same solicitor, but this is still not quite as simple as it appears because:
    • the digital or online system cannot yet accommodate the same solicitor acting for both parties
    • children and financial matters are dealt with separately
    • even if matters are agreed, technically there remains a conflict between the parties

Positive psychological impact

  • The ‘inbuilt’ delay (2 years and 5 years where parties did not wish to rely on a fault-based fact) of the legal process has been removed
  • Long-term, the positive impact on couples is likely to be significant. For example, few may appreciate the tax implications arising where, for example, one party moves out of the family home following separation but before financial issues have been resolved. There are many fact specific elements to consider, but the clock may start ticking from a tax perspective ‘immediately’ and the window for transfer and/or sale without tax consequences is very short.

These issues are not insignificant, but from a psychological perspective it’s likely to be helpful to many separated couples to know that they can initiate the process ‘together’. Starting the process together may mean that where parties are in conflict with each other by the very nature of their separation, discussions over issues related to children and finances may take place in a more constructive way.

A new financial chapter

Dealing with marital breakdown is one of the most seismic events in a person’s life. There is more than enough to deal with from a personal and psychological perspective. The legal process has been changed to better serve parties who wish to divorce, with as little conflict as possible, leaving them in the optimum position to move forward in a position of financial security.

Although this article has addressed the fact that matters relating to divorce, finances, and children continue to be dealt with separately, the removal of the element of conflict and delay should mean that parties can plan for their future in a more positive way.

And the best way to plan for the future? Tackle the difficult issues fully and where possible without delay. Seek professional advice if you are unclear as to your position.

For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.

Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal or financial position and is provided for information only. It is not an endorsement of any product or service provider.

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