The Beginning of the End of the Blame Game?

Change is finally coming to the divorce process in the UK – and about time, family lawyers and many of those who have been through the process will shout!

 

As of 6th April this year, the Divorce, Dissolution and Separation Act 2020 will reform the way that married parties can bring about the end of a relationship. Rather than having to petition under one of the ‘five facts’ of unreasonable behaviour, adultery, desertion, two-year separation or five-year separation to prove an irretrievable breakdown of marriage, parties seeking a divorce will instead be required to simply sign a sole or joint statement that the marriage has broken down and cannot be saved. In the eyes of the law at least, the Act brings about the end of the ‘blame game’ in divorce and represents one of the biggest shifts in this area of law for more than 50 years.

 

Although family solicitors have long been petitioning for no fault divorce, the calls for such change were reinvigorated following the landmark decision in Owens v Owens [2018] UKSC 41 which highlighted the inappropriate state of the law. Notwithstanding that it was obvious the marriage had broken down, the Court found no behaviour that Mrs Owens could not reasonably be expected to live with and, therefore, that the marriage could not be said to have irretrievably broken down. Mrs Owens’ petition, and subsequent appeal was dismissed, leaving Mr Owens successful in defending the divorce. The parties were to remain married until Mrs Owens could petition on the basis of a five-year separation.

 

It follows that the new rules are supposed to prevent objectively unfair instances such as this, where one party is forced to remain in an unhappy marriage and is prevented from applying to court for financial remedy. Though their introduction removes the potential feeling of vindication that many spouses may feel when apportioning blame to the other for the breakdown of marriage, they represent a more conciliatory approach to the divorce process and seek to avoid unnecessary conflict, increased involvement from solicitors, and inevitably higher costs that come with this.

 

The Act will also reflect the fact that for many divorcing couples there is quite simply no one to blame. According to the Family Procedure Rules Committee, the new divorce process will therefore “Allow parties to reflect in the legal process the fact that an often-difficult decision to divorce or seek a dissolution has nevertheless been a mutual one.” How, then, will the divorce process change as of next month?

Changes to Rules in the Divorce Process

 

The first thing to note about the new regime is the update in terminology. A petition and the petitioner become the application and the applicant, and a defended and undefended petition become a disputed and undisputed application respectively. The decree nisi will become a conditional divorce order, and a decree absolute a final divorce order.

How to apply

 

Following the new, conciliatory nature of the rules, an application can now be made by either one or both parties. Although the only ground upon which it can be brought remains that of irretrievable breakdown of the marriage, it no longer must be evidenced by one of the aforementioned ‘five facts,’ but rather by a statement that the marriage has broken down irretrievably. To avoid acrimonious litigation as in Owens, under the new Act the court must take the statement to be conclusive evidence that the marriage has broken down irretrievably and make the divorce order, as long as the parties have been married for at least 12 months.

Though the Act helps to prevent defended divorce on the basis of the five facts, the Respondent can challenge the divorce for other reasons, such as lack of jurisdiction, invalidity of the marriage, fraud and procedural non-compliance.

However, as aforementioned, for the first time under the new rules a joint application can be issued. If parties choose to do this, they are known as Applicant 1 and Applicant 2, rather than Applicant and Respondent. It is worth noting that a joint application can become a sole application, but that sole application cannot convert into a joint application once the divorce petition has been issued.

Service

 

The time for service has also altered under the new rules. While under the existing law there is no time limit for the service of divorce petitions, the new Family Procedure Rules provide that the Applicant must take “steps to serve” the application 28 days after the date of issue of the application, even if the application must be served out of jurisdiction.

However, there is no requirement that the service is actually effected within that period. There is a new minimum period of 20 weeks between the start of proceedings (the time that the application is issued) and the conditional order, to avoid the respondent’s ability to delay the 20 week period by evading service and to allow matters to move along.

The amended Family Procedure Rules also provide that the general rule going forwards is that service will be effected by the Court. This will be by email unless no email address for the Respondent is provided, or a request is made for postal service only.

Acknowledgement of Service

 

The acknowledgment of service (by the respondent) must be given within 14 days of service.

Conditional Order

 

The ‘conditional order’ replaces the former decree nisi, and cannot be applied for until 20 weeks after issue of the application, not 20 weeks after service, provided that the time for filing the acknowledgment of service has expired and no party has indicated an intention to dispute the application.

Final Order

 

The final order, formerly the decree absolute, cannot be applied for until 6 weeks and 1 day after the pronouncement of the conditional order, and if the application is made more than 12 months after the conditional order the reasons for the delay must still be explained to the court before it is made final.

If a joint applicant is making a sole application for a final order, then they must give 14 days’ notice to the other party and file a certificate of service after serving the notice.

Summary

 

To summarise, these changes in the divorce process signal positive news for divorcing couples. Although divorce will remain an emotional and often distressing process for those involved, the removal of the five facts and ability to apply on a joint basis will prevent spouses from waging war in the divorce petition and, it is hoped, acrimonious litigation between couples.

 

Though couples may still wish to air their grievances and reasons for the relationship breakdown, the new rules will further push practitioners to encourage divorcing couples to approach this in a constructive forum such as mediation or through collaborative law, now that the blame game – in divorce petitions at least – is no longer an option.

 

We have an experienced team of family lawyers on hand to provide specialist family law and divorce advice.  Contact us on 0800 015 0340 or family@chadlaw.co.uk to arrange a free initial half hour appointment to find out where you stand.