Vardags Family Law Essay competition 2023/24 | Phoebe Cracknell

Phoebe Cracknell - Queen Mary University of London

It’s not you…it’s not me either: No-Fault Divorce

Imagine you have just filed for divorce. You come to learn that your petition has been dismissed as you failed to prove that your husband “behaved in such a way that (you) cannot reasonably be expected to live with him”. Envisage how devasted you would feel at the realisation that you are trapped in a “wretchedly unhappy marriage”. Unfortunately, this occurred in the case of Owens v Owens in 2018. Therefore, it is unsurprising that this case sparked conversation as to whether the law surrounding divorce needed to be reformed.

This essay examines the old fault-based divorce system, explains how this differs from the new no-fault based system, and finally evaluates whether the reform is beneficial to the parties involved.

The old divorce system

Before April 2022, the sole ground for divorce in England and Wales was that the “marriage has broken down irretrievably”. To demonstrate this, the petitioner had to prove one of the five “facts” listed in the Matrimonial Causes Act 1973 (MCA 1973):

1. Your spouse has committed adultery,
2. Your spouse has carried out unreasonable behaviour,
3. Your spouse has deserted you for two or more years,
4. You have been separated for two years and both consent to a divorce, or,
5. You have been separated for five or more years.

The wording of the provisions and timeframes adopted in the legislation left just one route for those wishing to “skip” the two-year waiting period: to blame the divorce on their spouse. Although this system was rooted in a more traditional family and undoubtedly aimed to encourage spouses to resolve their issues (or at least for discussions to gain a rationality), it forced many amicable marriages into an unhealthy (not to mention often unjustified) “blame game” in an effort to speed up the process.

The new no-fault system

The new no-fault based system, introduced under the Divorce and Dissolution Act (DDSA) 2020 on the 6^th April 2022, has implemented several changes. Firstly, it is no longer necessary to prove that a spouse was responsible for the “irretrievable breakdown” of the marriage. Instead, the law encourages a friendlier route to separation, allowing applicants to simply state the marriage has broken down irretrievably. Secondly, under the MCA 1973, all applications for divorce were made on the application of one party (the sole application). The new legislation, on the other hand, allows for both sole and joint applications. Once these have been filed, a new (and longer) 20-week waiting period has been introduced before the Conditional Order can be made. This is then followed by a 6- week waiting period before a Final Order can be made, which remains the same as the old divorce system. Moreover, the new no-fault based system has also simplified terminology, making it easier to understand, and thereby improving accessibility and reducing the need for professional legal advice. Finally, a major difference between the two divorce systems is that, under the new no-fault based system, the respondent cannot contest the divorce application.

Blame and conflict

As Carla Ditz rightly argued, “the old law encouraged people to apportion blame”. The main advantage of the no-fault divorce is that it removes the possibility of blaming one party for the irretrievable breakdown of the marriage. In many cases, the couple have come to a mutual agreement to divorce, but the old system indirectly forced one party to pass the blame onto the other. For such couples, the fault-based system lacked practical applicability and was not a process that allowed for couples to separate with respect. It almost encouraged confrontation in order to fulfil a criterion. In contrast, the no-fault system lends itself to a less contentious and more peaceful divorce process, as spouses do not have to participate in legal battles to prove who is at fault to skip the legal queue.

What about the parties who want to pass blame? A potential disadvantage of the no-fault system is that there is arguably no accountability for the breakdown of a marriage. This may seem unfair and frustrating for those who feel their spouse fully or partly contributed to the breakdown of their marriage. Richards supports this view as he argues that it is unrealistic for the law to discourage parties from asking who is to blame, and contends that “blame, accusation, and strong feelings of injustice are the norm of divorce”. Bendall adds to this argument, stating “divorce law should be considered an appropriate forum for the continued expression of emotion, and for individuals to cope with loss”.

However, whilst passing blame may have short-term benefits for the applicant during the divorce, this bitter approach advanced by Richards and Bendall may influence the difficulty and hostility of any financial proceedings and any child-related arrangements. In most child arrangements, the court will seek to ensure that both parents are involved in the child’s life. This is why passing the blame onto one of the parents could have long-term damaging effects on the child. Moreover, many parties are under a false impression that their “un-blameworthiness” will be advantageous during the financial proceedings. This is simply not the case. The divorce and the financial situation of the family are treated as two separate matters, which is why the reasoning behind the divorce rarely plays into the division of the financial assets. Therefore, the no-fault system encourages a more positive tone from the offset of the divorce. By reducing hostility at the beginning of the divorce proceedings, it is more likely that there will be less polarisation as the claim progresses. Whilst it is naïve to believe that the no-fault system will completely eradicate all conflict, it is clear that the reform does not actively encourage hostility, and highlights that the divorce petition is certainly not the correct forum to be passing the blame.

Simplicity

The old fault-based system was often criticised for its uncertainty and lack of clarity, therefore leading to public scepticism in the UK’s legal system and undermining the key principle of the rule of law. Lord Bingham advocated for an “intelligible, clear and predictable” law,  which was not entirely reflected in the MCA 1973. The fault-based system directly challenged this as Trinder’s court file study found that 14.4% of petitions were refused due to problems including missing or incorrect information. This study highlights the need for reform of the old system, driven by the lack of clarity for potential petitioners. The implementation of simpler terminology provides an opportunity to produce cultural change, removing the extremely technical terms which are often misunderstood and promote conflict. The complex and antiquated legal jargon used previously under the old divorce system, arguably acted as a barrier to many individuals. In an already stressful process, the divorce system should support families, rather than intimidate them. The simplification of the legal terminology was therefore a positive and important change to the divorce process, especially because this area of law deals with the most intimate and personal details of an individual’s life.However, some may argue that perhaps the application process has now become overly simplified, and has created two key issues. Firstly, one of the major changes introduced with the new no-fault system is the online divorce service. One of the concerns with this new online platform is that it allows for applicants to apply for divorce without receiving legal advice. Whilst this may positively remove a financial barrier for many disadvantaged households, the online platform is arguably concerning as it has the potential of misleading individuals into thinking that their marital difficulties will be solved once they click “Submit”. Instead, both parties should be prepared and equipped with the knowledge of potential financial proceedings and child arrangements that may follow. Secondly, another fundamental change to the divorce system is that, once a sole application has been made (where only one party files for divorce), the default method of service onto the other party is via email. It is extremely concerning that the practice of communicating such significant information by email, is becoming acceptable, especially in cases where divorce had not been mentioned between the parties prior to service. There is no doubt that the psychological impact of this process on the respondent could be extremely damaging. Although Civil Procedure Rule, and Practice Direction 6 and 7 in particular, indicate that a respondent’s business email should not be used for this purpose, it seems highly unlikely that the court would have the resources to investigate whether that is the case. This aspect is arguably one of the weaknesses to the no-fault based system, and it is highly advisable not to use the legal process to initially communicate a desire for divorce, but rather to address the possibility face-to-face in a private manner, where the timing of the conversation can be considered.

Whilst many would have reservations about the acceptability of service being delivered via email, it is worth noting that using email as a platform for serving proceedings significantly simplifies the process for the applicant, especially where the other party resides abroad (which is becoming more common). Nonetheless, the controversy relating to this issue arguably does not outweigh the many positives that accompany the new online divorce system as a whole, and the simplification of the divorce application in general. The online HMCTS Portal makes the process of applying for a divorce much quicker, more accessible, and more affordable for the applicant. Trinder convincingly argues in favour of a computer-based system stating that it “has the potential to provide a fast, reassuring and accessible process for individuals going through a highly stressful life event”. The no-fault system may also be less expensive than the previous fault-based process as “removing the fault element mitigates the initial meeting with solicitors to discuss the grounds for divorce”. Under the new law, the applicant is simply required to confirm the irretrievable breakdown of the marriage, eliminating the need to specify a reason.

It could be questioned, however whether this is actually a positive outcome of the reform. Not specifying a reason may consequentially make it overly easy for applicants to apply for divorce.

Such simplification may lead to a multitude of trivial applications, whereby an application is made prematurely after an argument, lacking the necessary consideration and prudence.

Extending the waiting period

The extension of the minimum waiting period has arguably been increased to try to temper those concerns over the increase in divorce rates and trivial applications. The introduction of a longer cooling off period provides the parties with the opportunity to fully reflect on their situation, and to consider other potential options including counselling or mediation, which could lead to reconciliation. One could see how this broadly compares to the requirement of alternative dispute resolution before commencing proceedings at court, which is mandated by Civil Procedures Rules in other types of civil claims. This is arguably beneficial for those couples who are not completely certain of their decision to divorce. The extension of this waiting period also provides both parties with sufficient time to settle any financial or child-related disputes prior to the finalisation of their divorce.

On the contrary, the extended waiting period may not be suitable for those couples who aim to finalise their divorce expeditiously. Should both parties be certain divorce is their desired route, the total waiting period of 26 weeks can feel like an exceptionally long time to wait. Additionally, such extensive delays may adversely influence the mental well-being of children, in what is already a difficult transition in the lifespan of any family and complicate financial planning.

It is important to recognise that no divorce is the same, and therefore to introduce a mandatory waiting period for all divorce applications seems unnecessary. Arguably, the reformation of the divorce law could have been improved by making this waiting period an optional element to the divorce proceedings, and giving the parties an element of control as to length of time needed to negotiate. As set out in the Divorce, Dissolution and Separation Act 2020, if a married couple disclose an agreed statement that the marriage as irretrievably broken down, the court are then required to accept this as unassailable evidence. Therefore, this begs the question as to why a compulsory minimum period of 20 weeks between the initial divorce application and the Conditional Order is still a requisite.

One potential reason for this, is that it allows for any financial proceedings and child-related arrangements to be dealt with, and hopefully resolved in the meantime. If either party wishes to submit a C100 Form (a Child Arrangements Application) to commence the children proceedings, or wishes to submit a Form A to commence the financial proceedings, then the applicant must consider attending a Mediation Information & Assessment Meeting (MIAM). Therefore, the cooling off period within the divorce proceedings is arguably beneficial, enabling the parties to concentrate solely on resolving any financial or child-related disputes, before the finalisation of their divorce.

Moreover, it is standard practice to delay the application for a Final Order (which concludes divorce proceedings) until a Financial Order has been acquired. Therefore, it is arguable whether the waiting period negatively delays the conclusion of a divorce, given much of that time is spent concurrently negotiating the financial and child-related arrangements. Without the delay and these related practices, it is possible that fundamental issues affecting family life would remain unresolved following the conclusion of divorce proceedings, and any pressure on the spouses to address the matters would be lifted. There is little justification (whether moral or legislative) for such procedural chaos to ensue.