No Fault Divorce – How Long Do We Have to Wait and What More is Needed?
Even though proposed legislation removing fault from the divorce process has completed its parliamentary journey, it is anticipated that couples seeking a no-fault divorce will still have to wait until autumn 2021 before being able to do so.
The Divorce, Dissolution, and Separation Bill 2020 has received Royal assent. However, lord chancellor Robert Buckland told MPs that the bill’s reforms will not come into force on Royal assent ‘because time needs to be allowed for careful implementation’. Buckland said: ‘At this early stage, we are working towards an indicative timetable of implementation in autumn 2021.’ Further news is therefore anxiously awaited.
On the whole, family lawyers are delighted to see the bill finally approved by both the House of Commons and House of Lords. The Law Society has also confirmed its support, saying ‘no-fault’ divorce will bring divorce law into the 21st century.
Sybilla Agasee, principal of Agasee Law Associates, said: “The historic resistance to these clearly needed reforms on religious grounds or on the belief that the institution of marriage will be undermined, have finally been put to one side. Along with the majority of family law professionals, and the wider public at large, I was delighted to see the bill conclude its passage in parliament.”
After almost 30 years of campaigning by Resolution (and others) stretching back to The Family Law Act 1996 and before, and with several failed attempts in the past, it is essential that this law is now given full force, without further delay. Sybilla concluded, “We cannot underestimate the importance of providing couples with the opportunity to divorce without conflict, recriminations and complications, which only serve to lead to increased costs and delays. “Like many the case of Owens v Owens left many outside the family law arena in a state of shock, and finally focused minds, that individuals should not be forced to stay married by antiquated laws that no longer make sense in modern society. A more civilised, respectful, and simple divorce process fit for the 21st century is what is required.
“The fact that couples will be able to petition for divorce jointly shows the increasing recognition of the need to move away from an adversarial process, with one side pitted against the other.” An important symbolic change as the courts increasingly wish for divorcing couples to find alternatives to high conflict, contested court proceedings which for most families should carry a serious ‘risk to health’ warning.
The process introduces a minimum overall timeframe answering fears of the introduction of a "quickie” divorce. Some have, however, questioned whether this time frame should be a requirement prior to the ability to start the divorce process, rather than what could be interpreted as a device that serves to simply ‘run down the clock.
The court has increasingly looked to step back from the divorce process, taking it out of the judicial arena. The removal of the Statement of Arrangements for Children document was implemented with barely any comment, and yet this required divorcing couples to address what would be happening to their children in the aftermath of the separation. There has more recently been an increasing recognition of the need for children to have a voice and fears that their Human Rights should be recognised and safe guarded.
Sadly, the new procedure is silent on the needs or wishes of the children, (so often the casualties of poorly managed separation and divorce). The courts constantly bemoan the increasing number of private law children cases coming to court. They urge parents to ‘step up’ and agree decisions which should not fall to be settled by a judge. Examples include, asking the courts to decide things such as at which service station the hand over the children should take place or at what time on Christmas day the children should move from one household to another.
Prevention has always been recognised as better than cure. Currently it appears unlikely government funding will be earmarked but over time perhaps there will be a cultural and attitudinal shift, as money spent at the outset could see court cases reduce dramatically, creating significant savings in the long term.
For parents that think about, or effect a separation, there needs to be an education programme designed which can be accessed remotely and viewed online, which should highlight the needs of children, and the proof of which should be a requirement before being able to start the divorce process. Talking through the importance of agreed communications with the children about the separation, should be actively encouraged along with work to find ways so that the children of an appropriate age can be involved and supported through the separation process in a positive way.
Below are links to some helpful resources already available. However, if you would like further information or advice on separation or divorce, and the associated things that need sorting out such as the arrangements for the children, the house, having enough money to live on and achieving a fair division of your assets or pensions, then please do call in complete confidence on 07825167785.
The detail of the rules around the new process, will need to be integrated into the new online portal system and court forms will need to be adapted also. As a result, it is not likely that no-fault divorces will be a reality until late 2021 or even some time in 2022. If we don’t see the changes coming into effect, then we are going to need to make a noise and ensure this isn’t just another false start.
You may have good reasons for not wanting to wait. If so, it will be more important than ever that you to get specialist, experienced family law advice about your options and what to do next. We are here to help. Feel free to email us on help@agaseelaw.com and we would be pleased to communicate with you in complete confidence.
· Parenting Plan - Cafcass - Children and Family Court Advisory and Support Service
· Resources for parents and carers - Cafcass - Children and Family Court Advisory and Support Service
· Children and the law | Resolution