One month on from the introduction of the new system of ‘no fault’ divorce, lawyers and clients alike are hailing it as a positive step. But is it all positive?
And do clients really still need their lawyers with this new, simplified system or can they go it alone?
Following decades of campaigning – both for and against – no fault divorce was introduced in England and Wales on 6 April 2022. The applicant for a divorce is no longer required to set out a list of poor behaviour on their spouse’s part or provide dates and circumstances of a separation which might have taken place many years before.
Instead, the applicant, or even applicants now that a joint application is allowed, declare that the marriage has irretrievably broken down. No further details beyond that are needed. The reasons for which a divorce can be held up or stopped have been massively restricted. Now only disputes on technical characteristics like jurisdiction and validity of marriage can be made whereas before, a divorce could be delayed or even thrown out of court because the facts stated were disputed, even at the very basic level of contesting that marriage had actually broken down at all.
But does this mean the new system is so simple that lawyers will fall entirely out of the picture? The answer is undoubtedly no.
While there are some cases in which the parties will be able to progress a divorce through the court’s online portal smoothly and swiftly, this won’t be the case for everyone. There are still a number of areas in which using a lawyer will be highly advisable, if not essential.
It is essential to get a good understanding of your financial rights and obligations at as early a stage as you can. Entering into negotiations, no matter how informal or high level, without first understanding what you might be entitled to or required to provide is risky. It can create an expectation on your spouse’s part that might be at an unrealistically high or low level and which they could struggle to move on from, even after taking professional advice.
The interim financial position could also vary significantly from the longer term picture so it is vital to understand both before discussing either of them. In the days following a separation, while financial matters are up in the air and everyone is adjusting to the new normal, your circumstances could vary a great deal from what you need or are prepared to settle upon in the longer term so it’s good to understand what the bottom line is before any discussions commence.
It is worth remembering too, that even though divorce has moved to a far simpler procedure, the way finances are dealt with remains really quite complex. There is a long list of factors to take into consideration, as set out in the Matrimonial Causes Act 1973, Section 25. A family law specialist can advise you on how each of them might affect your case.
A lawyer will be able to work with the timeframes in the divorce process to make sure that, as far as possible, the two conclude at the same time and as quickly as possible in the circumstances. To have the financial settlement formally concluded it will need to be drawn up by a family solicitor in such a way to ensure the terms are approved by the Court and are formally binding on you and your spouse.
Foreign Connections and other technical aspects of divorce
Jurisdiction is one of the few remaining reasons why a divorce application can be ‘disputed’, or contested in the courts. This potentially thorny issue has an added layer of complexity since Brexit. Where the parties or the marriage have any foreign connections, it is important to take advice from a lawyer at an early stage to confirm that England and Wales is the best jurisdiction, and if so, that the application is correctly drafted. The procedures and financial outcomes can vary from country to country – even within the UK – so it is very important that advice is taken to understand jurisdiction before an application is started if it is a relevant factor.
The online application form now gives 12 separate jurisdiction options, though some do overlap). Although the procedure is designed to be simpler and quicker, any errors would undoubtedly slow the process down, or at worst open up the possibility of the application being disputed and even thrown out by the Court. It is far better and far quicker to get the jurisdiction right first time by taking advice from a specialist family lawyer.
Some common scenarios in which a marriage might have foreign connections and jurisdiction issues include:
- One or both parties being nationals of or domiciled in any countries other and England or Wales;
- Having got married abroad, even if only visiting for a ‘destination wedding’;
- Being based in England and Wales on a temporary basis; and
- Having entered into a pre-nuptial agreement or any other type of marriage or property agreement abroad.
The list above is not exhaustive. Every marriage is different and there are countless ways a marriage or the parties to it can have connections to foreign jurisdictions that might impact on a divorce application made in England and Wales. If there are any connections, even from a long time ago, it is best to consult with a lawyer before starting the process to ensure you achieve the best possible outcome.
Validity of a marriage, that is whether there is a properly formed legal marriage or not, is another factor upon which an application can be disputed. If you had a religious marriage, or married abroad, you should consult with an experienced family lawyer before starting the divorce process. They can advise you on any validity issues and the financial consequences arising from your relationship.
Support during a divorce
A solicitor can act as a vital form of support during a divorce, someone you can turn to with all your questions about the process and to give you advice on the best way forward. They can also help you access other forms of help like counsellors and domestic abuse support services.
Practical issues of divorce process
It is clear there are a few scenarios in which the new no fault system will pose issues of a practical nature for some going through the divorce process.
For the time being, we effectively have two systems of divorce law running in parallel:
- Applications already started at 6 April 2022 will continue to be progressed under the old fault-based procedure and using old terminology.
- New applications made on or after 6 April 2022 will use the new procedure and terminology.
A range of guidance is available to help the public, from law firms, from various organisations and from the court itself. Unfortunately, it’s not always clear what system is referred to and there is a risk that incorrect guidance could be followed, resulting in unnecessary delay and expense. This presents an obvious difficulty for anyone going it alone without the help of a solicitor.
It is advisable to settle financial matters within the divorce process because upon the final order being made (or decree absolute under the previous fault-based system), entitlements to certain financial benefits as a spouse will cease immediately. For example, the right to a Widow or Widower’s Pension would cease automatically.
A Home Rights Notice to protect rights in a family home owned in one party’s sole name can be removed. It is essential that alternative provision is put in place before any of these rights are lost so for this reason you should speak to a solicitor about financial and property matters as soon as you can.
Joint applications are now possible and the Government has expressed a hope that they will become the norm. This may turn out to be the case but, from the family lawyer’s point of view, there are some potential pitfalls.
Sadly, the high level of amicability at the start of some cases does not last, despite the best efforts of all those involved. The practicalities of a separation – where children live and with whom, dividing up treasured possessions, and even pets! – mean that even the most amicable of splits can become difficult and painful. A joint application may not remain appropriate as the matter progresses.
The new system allows for notice to be served by one party on the other that they will convert the joint petition to a sole one and take charge of progressing it to its conclusion. It is important that this notice is given correctly so as to avoid any unnecessary conflict or delay. A family law expert can advise you on this and ensure everything is satisfactory to the court and done in accordance with the new procedure.
The Government has acknowledged that joint applications will not be appropriate in all circumstances, particularly in cases where there has been domestic abuse. Having a family lawyer help you can provide a protective buffer between you and your spouse. Even if there has been no abusive behaviour, having someone to guide and advise you in more ‘human’ terms can be a great comfort in comparison to the court’s rather formal communications dropping directly into your inbox.
Furley Page divorce lawyers are here to help you
The family law experts at Furley Page are committed to dealing with divorce in a co-operative and constructive manner and so we have welcomed the new no fault divorce system. The simplification of the process and move away from using legal terms in Latin is something that cannot help but make things easier for our clients and those representing themselves to deal with.
However, it is clear there are still a large number of ways in which our role will be essential in guiding clients through the process. Divorce remains a legal process that has fundamental implications for a person’s legal status and their financial future so it is essential that expert guidance is taken as early as possible to ensure the process works for you.
Our Family Law team has a wealth of expertise in all aspects of matrimonial law including divorce, dissolution of civil partnerships, applications for judicial separation and annulment. Should you wish to discuss your situation and what the changes in the law mean for you, please telephone 01227 763939 for assistance.