Child arrangements and no-fault divorce

The Divorce, Dissolution and Separation Act 2020 (DDSA 2020) comes into force today, 6 April 2022, and sees the implementation of ‘No-Fault Divorce’, a move which, it is hoped, will put an end to the ‘blame game’ by which divorce is often characterised at present.

Currently, although the only ‘ground’ for divorce is the irretrievable breakdown of marriage, this must be supported by one of five ‘facts’, namely:

• Desertion
• Five years’ separation
• Two years’ separation with consent
• Adultery
• Unreasonable behaviour

In certain cases, the entire relationship may have broken down, and the temperature between the parties can be elevated before proceedings begin. However, in otherswhere the parties have simply drifted apart, and an amicable separation could be agreed upon, the ‘facts’ appear to exist only to cause friction, and invite acrimony where it might otherwise have been avoided. By introducing ‘no-fault’ divorce, the Divorce, Dissolution and Separation Act 2020 seeks to ensure that any hostility in a separation is not exacerbated, or created, by an administrative requirement.

Children matters are distinct from divorce and, therefore, unaffected, in procedure by the implementation of ‘no-fault’ divorce. In practice, however, given the focus on limiting animosity to that inherently involved in a separation, ‘no-fault’ divorce should hopefully provide a more amicable starting point from which child arrangements can be made.

Wherever possible, separating parents should be encouraged to reach an agreement in respect of their child arrangements outside of court. If parents can cooperate with each other, and collaboratively come to an agreement that allows for flexibility, while still ensuring that children have the routine and stability they need, this is very likely to be in the children’s best interests. When parents cannot get on, children can find themselves at the centre of a dispute, and agreements in respect of child arrangements can become unattainable not because of the inability of a parent to fulfil their role, but because of parental conflict. Unsurprisingly, and unfortunately, if one party has recently had to list the reasons why they can no longer live with the other, this may not provide the most stable foundation for a co-parenting relationship.

As part of the ‘no-fault’ divorce process, the party, or parties, who applied for divorce will have to wait 20 weeks before the court can grant a conditional order (formerly ‘decree nisi’). This period of reflection should provide time for parties to discuss child arrangements outside of the court arena. If parents can reach an agreement, an application for a child arrangements order might be avoided which, from a child welfare perspective, can only be beneficial.

As is recognised by section 1(2) of the Children Act, any delay is likely to prejudice a child’s welfare in the determination of a question relating to his or her upbringing. Another potential benefit of ‘no-fault’ divorce from a welfare perspective is therefore that, moving forward, it will only be possible to defend a divorce on the grounds of:

• Jurisdiction
• Validity
• If the marriage has already been legally ended

As defended divorces (now known as disputed proceedings) inevitably lead to an increase both in costs and time incurred, this should hopefully prevent at least some cases from taking longer than strictly necessary, and encourage parents to settle any issues in respect of child arrangements in the same timeframe.

The DDSA 2020 will also see change in the terminology used to describe the divorce process to make it more user friendly. ‘Decree nisi’ and ‘decree absolute’ will be replaced with ‘conditional’ and ‘final’ orders respectively, and a ‘petition’ and ‘petitioner’ will become the more neutral application and applicant. While the modernisation of archaic legalese might seem like a minor benefit of the new system, it should hopefully assist in making the process more understandable and accessible, which, in turn, should assist in achieving the aim of distancing the divorce process from any perceived images of a battleground.

The Children Act 1989 took the first step towards modernising the terms used in children proceedings and moved away from talk of ‘custody’ or ‘access’, which might suggest an element of possession or wrongdoing, in favour of residence and contact. This was followed by the introduction of child arrangements orders, rather than contact or residence orders, in 2014, which determine with whom a child lives, or spends time. If terminology has inherently negative or combative connotations, this perpetuates the idea that applications in the family court should be acrimonious, which they need not necessarily be.

The Family Solutions Group (FSG) headed by Sir Stephen Cobb, sees the implementation of ‘no-fault’ divorce as a ‘perfect opportunity to re-frame our understanding of family separation and prioritise child welfare’. One would certainly hope that a less adversarial divorce process, which actively acknowledges that divorce need not be blamed on one party, would allow not only for any unnecessary animosity to be kept at bay, but allow space for any child of the family’s wellbeing to be prioritised, as it should be.

Vardags’ team of top divorce lawyers delivers bespoke legal services top HNW and UHNW individuals, their families and buisinesses. Learn more from Vardags’ divorce guides, including the no fault divorce guide, and Vardags’ children guides.