Family Law

David Hodson analyses the detail of the government proposals and finds areas of concern about how it will operate in practice.  He calls for these to be discussed now, and before the parliamentary debate.

Introduction

There was jubilation at our offices on Tuesday morning, 9 April 2019, at the news from the UK Ministry of Justice that legislation would be brought forward, as soon as parliamentary time allowed, to reform the law on divorce in England and Wales, to bring in no-fault divorce. Lawyers at our firm as with family lawyers across the country had been supporting and encouraging this change over many years. Some of us were actively involved in the 1996 Family Law Act which introduced no-fault divorce but which, frustratingly, was not then subsequently implemented by the then Labour government.

Perhaps our jubilation was more keenly felt because with our significant international family law experience we deal with so many countries which have no fault systems of law and which in our experience seem to work perfectly well without the need for allegations and counter accusations about who was to blame. Simple notification divorces apply in several other countries with some having a period of separation.  It’s also more a no conduct divorce rather than a no-fault divorce as Lady Hale said in the Supreme Court in Owens.

We have considered the government report and agree with many of the proposals and the intentions behind the proposals. We will in principle support the legislation in Parliament.

Nevertheless there are a number of features which in our considerable experience are of real concern. It’s crucial in our opinion that there should be this debate about the process for the no-fault divorce now rather than when it arrives in a Bill in parliament. Some of these concerns should not be too controversial although this is an area in which there are many agendas. Some require significant shifts in the way the no-fault divorce would work. Others require changes in the legal process. Yet others require changes in primary legislation alongside divorce legislation. But some go to the entire concept of irretrievable breakdown based on a unilateral notice.

Divorce by notice and not period of reflection

The proposed divorce process would be a notice which, 26 weeks after the giving of the notice, would result in a final divorce on the application of either party. In 1996, Professor Stephen Cretney described this as a peculiarly English Talaq.  No opportunity to object. Once the period has elapsed, there would be a divorce if either party still wanted it. In fact this model is our preferred approach to that of a period of separation which has some inherent problems and fictions e.g. separate lives under the same roof.  

But please do not call it a period of reflection. This is set out in some parts of the government paper and surrounding publicity. Quite perversely, it’s even suggested that the last six weeks of the 26-week period should be “sufficient time for reflection”, ignoring the obvious fact that personal reflection is invariably at the beginning of the process when the notice is received, and especially where the divorce might have been unexpected either at all or as to its timing.

This reference to period of reflection comes from the 1996 legislation but is significantly different here. Specifically in 2019 there is no active opportunity for reflection about reconciliation or mediation before other ancillary litigation kicks off immediately. In contrast, in 1996 there was a preliminary period of three months after the start of the process during which there would be no other proceedings unless an emergency of any form. The purpose, strongly advocated by the then Lord Chancellor, Lord Mackay of Clashfern, was that the couple would have space and time to reflect on the marriage, whether it was savable including perhaps with professional counselling assistance and if not nevertheless to use the benefits of mediation about parenting or financial aspects. If after three months it was still the desire of one or both to proceed with the divorce then ancillary financial and other proceedings could get underway. It was part of the overall time period for the divorce but a significant early stage for this particular purpose.

This government proposal is completely silent on this, whilst perhaps deceptively referring to periods for reflection without any proper safe opportunity for that reflection. It is impossible to reflect on the marriage if faced with court proceedings to deal with financial aspects or similar. If one spouse is racing ahead to deal with the sale of the house etc, then the other has to follow suit. Rarely does a three-month moratorium prejudice. If it does, an emergency application would be justified.

If there is a six-month period, there should be a period of reflection and consideration at the beginning, after service, when no other proceedings occur and when there can be specific and direct opportunity for reflection on possible reconciliation or mediation or other agreed arrangements, and specifically no litigation. It could be three months. There will be no prejudice because it would be possible for emergency court applications to be made where required. There would be no change to the overall 26 weeks, or such other period as may be decided within parliament. But there would be huge benefit for many couples. This is urged strongly.  

And in the meantime there must be no discussion that this divorce process entertains opportunities for periods of reflection. This is just as much a fiction as the law has previously entertained other legal fictions on divorce.

Unfortunately the impression is that references in the government consultation paper to a period of reflection looks like a sop to those anxious about proper and appropriate opportunities of reconciliation. Perhaps even a sop to those anxious about this divorce reform itself. This sop cannot be allowed to stay. Either the government must abandon such references altogether or, far better, there must be a meaningful process to give real support and encouragement for opportunities for reconciliation, discussion about the marital breakdown and resolution without court proceedings by using mediation, parenting assistance and similar. These must be fundamental elements of the process and not an afterthought or a sop, particularly when the intended reflection is at the wrong end of the divorce timetable.

What is an irretrievable breakdown? 

Looking at the period of reflection in the last six weeks before the final divorce inevitably prompts the question about what is the irretrievable breakdown for divorce under this new process? It’s easy under the present law. It is one of the five facts, the grounds for divorce, all of which occur before the divorce process starts. What is the irretrievable breakdown under the new process? We hasten to say that we support a single concept of divorce on the basis of irretrievable breakdown. But as a legal profession and as a society we must know what that is and crucially when it occurs.

It can’t be the giving of notice. How can it be that the giving of notice to commence a 26-week countdown to a final divorce can in itself be evidence of an irretrievable breakdown? The concern is that the notice may sometimes be a cry for help, and a need to be taken seriously in anxieties about the marriage relationship or other reasons. There need not have been a separation period or adultery nor even artificial allegations of unreasonable behaviour. Simply a notice. Statistics already show that there are a number of petitions which are issued but which never proceed; anecdotally this is anticipated to be higher with the online process.  (The profession still waits to find out how many of those 13 online petitions on Christmas Day have actually proceeded!)

Moreover the breakdown has to be irretrievable. This is going to be a fiction if a good number of notices never proceed. 

It cannot be irretrievable breakdown on the giving of notice coupled with the expiry of the notice period because this makes the irretrievable breakdown at the time of the notice conditional upon the notice expiry. It’s conceptually difficult to think of irretrievable being conditional.

In short, it cannot be the case that the evidence of the irretrievable breakdown is the giving of this notice. It cannot be at the outset. It cannot be the notice giving itself.

The time of the notice should not run from the date of giving notice

From whence should the 26-week period run? The Ministry of Justice admits there were mixed opinions. They accept there are issues with service. But they intend the time runs from the date of the notice. The fact that it may be wholly unexpected and moreover be some weeks before it comes to the attention of the respondent is irrelevant. They say they will further explore implications in cases where there are service difficulties. We believe they are seriously underestimating the difficulties and as a consequence seriously reducing the time period from notice. This will have detrimental impact on many respondent spouses, especially those surprised by receipt of the notice and keen to have a chance to be heard, even if there is no chance ultimately to object to the divorce.

It makes it far harder to accept a notice concept for irretrievable breakdown of divorce if the recipient party has a relatively short period of knowing about the notice, well less than 26 weeks, even if she or he also has no ability in law to object. This becomes exceedingly like a talaq. At the least there should be every opportunity for the recipient to have time to explain to the other spouse why they think the marriage could continue and to be heard, even if ultimately they cannot resist the divorce. This opportunity is not possible without having the entire period. Having a divorce based on 26 weeks’ notice is a fallacy if the recipient does not have the 26 weeks’ notice.

There are two initial problems here before the much bigger problem. First, if the notice to be served has been issued by the court, it can take several weeks for even simple documents to be filed and acknowledged. It’s unreasonable that the initial 20-week period should be shortened for the respondent because of long administrative delays at the court office.  We fully acknowledge that the online process will be much quicker and my firm is part of the pilot online divorce project.  Even so at the present, it can be a week between online submission of a divorce petition and the receipt of the acknowledgement of service. Secondly in every case 7 working days are allowed from postage to the respondent to deemed receipt. So in every case apart from online filing there will be only about 18 weeks from receipt of the notice rather than 20. Where there are court delays, the notice period will be even shorter. So 20 weeks or even 18 weeks will not actually occur.  his will never be a 26 week notice period for divorce if time runs from the giving of notice. 

Then there are the many international cases. England is a very international country. There are very many international couples with many divorces having an international element. Divorce papers are served abroad. Court rules specifically provide a much longer time period for service. Many including around Europe, America and the Caribbean provide for 21 days before the respondent is deemed to have received the petition. But there are countries further afield where the period is 31 days, sometimes more. A little less than five weeks. So even presuming the court office turns around the divorce notice within a day, which does not happen, a quarter of the 20-week period before the first decree may elapse when service according to the court rules is taking place and the recipient is aware. This is grossly unfair on those recipients.

Moreover around the world, within the EU whilst we are a member, and amongst the Hague Conference countries, there are international multilateral laws for service to take place using the means of intergovernmental assistance. Some countries will only accept service through this means. In our experience, this can take very many weeks, sometimes at least several months. There are some countries in Europe where in our experience using this intergovernmental service process can take 20 weeks or more. Sometimes it can be periods of up to a year in some areas of the world. So the medium of proper international cooperation through international laws will mean that the 20-week period may have elapsed before the respondent has fully received notification. This cannot be right.

This is not “service difficulties” as described by the government paper. This is fairly normal timetable and procedure in the many such cases which are before the English family courts. Simply producing evidence of service before applying for the first decree, as the government paper suggests, is wholly inadequate. The government needs to think again on the commencement of the notification period, because there will be many instances where the 20 weeks are simply illusory and respondents have significantly less notice. This is unfair. It would be condemned by us in respect of other countries.  It cannot continue in this proposed divorce model. If Parliament thinks divorce by 26-week notice is appropriate, that should be 26 weeks from when the respondent has the notice

Finally it has to be made absolutely clear that the giving of the notice is the start of the divorce proceedings. The EU places such importance on the precise moment of the lodging of the proceedings in the race to court, which is itself so against opportunities for reconciliation and mediation.

Delaying the final divorce

We are concerned that there is insufficient attention given to the frequent need at present to delay the final divorce order because financial arrangements have not been sorted out. This is much greater if there is only a six-month period.  Although divorces at present could only take four months, the delays at the court offices mean it is often much longer.  Even if a financial application was made at the time of the divorce, one would rarely get to an FDR, the stage at which many cases settle, within six months. So with a six-month notice period, there is far greater likelihood that many cases will not have reached financial resolution. 

The reason is simple. Having the final divorce before the final financial settlement can cause major financial hardship and loss to one spouse in, for example, circumstances where a spouse dies between divorce and what would otherwise be the financial settlement. The claimant spouse loses opportunities for financial remedies and pension sharing orders, entitlement under life policies, death in-service benefits and similar. It’s a crucially important element which lawyers look after for their clients.

The government response is inadequate and, notwithstanding relying on the article by our Emma Nash, footnote 32, shows insufficient understanding. The government says that where appropriate the additional time before decree nisi could maximise the opportunity for the parties to agree plans for financial arrangements. They say this could protect against adverse consequences from finalising a divorce while there are outstanding financial matters, such as pension sharing rights. This is just nonsense. The first decree will be 20 weeks after the initial notification. This is barely time to have the so-called first appointment of consideration at court of financial claims when directions are given: this hearing is often 10 weeks after the application, even presuming the application is served immediately on giving notice for the divorce. So halfway through the 20-week period one has only got to the first directions appointment. An FDR after this hearing, when cases invariably settle, would never be within 20 weeks. So this so-called additional time is no opportunity at all.

The government goes on to say in terms that existing legislation would be sufficient to protect entitlements. It is not. The existing 1973 legislation doesn’t deal adequately, primarily because it is now very out of date. The existing case law is far too biased towards the bigger money cases and towards the financially wealthier party.  Many spouses are very vulnerable if there is a final divorce and the pension arrangements have not yet been dealt with. They have no entitlement to death in service benefit and other allowances if the other party were to die after the divorce and before the financial settlement. 

In practice at the moment, undertakings are given for the final decree to be delayed pending the financial settlement. But this is only good practice within the sensible elements of the profession. It is not the law and is vulnerable to the aggressive spouse who wants the divorce as quickly as possible, before financial settlement. At this time of divorce reform, there must be specific legislative change to make sure that if there were any adverse consequences arising from a divorce whilst there are outstanding financial matters such as pension sharing rights, there would be a delayed final divorce. Not having the ability to object to the divorce is one thing which Parliament may support. But Parliament must not support the inability to delay the divorce when there would be financial prejudice.

In my submissions, I suggested that where there was an outstanding financial application, Form A, there could be no decree absolute until the final financial order unless it was shown that there was no possibility of financial prejudice to either party by the decree being pronounced before the financial settlement. This is urged again.

Two-stage decrees

In my submissions I argued that this was historic and no longer needed. It served no useful purpose. In its paper the government has said there are two reasons to retain it. One of these is for couples to consider the implications of divorce. As set out above, this is just wrong and meaningless. The consideration of implications, what might be known as opportunity to reflect and consider, is at the beginning of the process, not 20 weeks later. The second reason given is for potential involvement of the Queen’s Proctor if there was any questionable element about the divorce process. We understand this even though it is rarely used. We believe there are other ways of ensuring that potentially deceptive or fraudulent divorces are challenged by the Queen’s Proctor than imposing on everyone this artificial six-week element.

We are concerned that some parties, especially in person, believe the first decree is in fact the final decree of divorce, however much notification by the court office says otherwise. Some don’t then apply for the decree absolute.

We have read the responses on this issue at section 4 of App A of the government report. They refer to some sort of consensus that this two-stage decree process allows time for reflection and consideration as well as to agree arrangements for children and finances. We disagree strongly. More often the making of the first decree is perceived by many clients as the final nail being placed in position, to be hammered home when the six weeks have expired for the final decree. Any reflection and consideration is well before then. As we set out above, this six-week period is inadequate, in combination with the 20-week period, to resolve all matters. There’s no transitional thinking except for a rather Pavlovian expectation of the imminent final decree. The consultation responses which suggested it allowed time to make pension sharing orders are wrong in our experience. We agree with the responses which said it is archaic with an unclear purpose and that parties feel emotionally divorced once the first decree is granted. We urge a review of this element. It’s not needed. It’s artificial.

The high price of a divorce

England has one of the highest court fees worldwide to be paid on seeking a divorce: £550. Australia is also high but England is near the top. It’s almost like a penalty for an unhappy marriage for the poor. With the abolition of the need for the court to scrutinise grounds for a divorce, with the notice document being much shorter than the present divorce petition and with the expectation that a significant number will be dealt with on line, there can be no more justification for such high fees being levied on the application for a divorce. This must be time to reduce the court fees and the price for a divorce. Moreover divorce should not be seen as an opportunity to subsidise other elements of the family court system. It is already far too costly for the parties.

Conclusion

These remarks are not intended to detract from support in principle to no-fault divorce. We support the new terminology.  support opportunity for joint petitions and retention of the twelve-month bar.

But other elements are very unsatisfactory. The continued reference to periods of reflection is simply misleading. The giving of the notice is the firing gun to other litigation. Prospects of reconciliation and mediation fall away. There should be a delineated period after the giving of notice when there is a safety zone for marital well-being to be properly considered. We suggest three months. At the moment it is nothing at all. The public and parliament will be deceived if it is expected that this process allows opportunities for reflection, consideration and specific reconciliation and mediation.

We have concerns about when time starts to run which in our experience the government proposal will mean that a good number of respondents have significantly less than the 20-week period until the first decree. In some instances where service is in accordance with the court rules, at least a quarter of this period might be taken up with good service abroad. If there is to be divorce by notice, and that notice period is decided by parliament to be 26 weeks, the recipient must have that entire time from when she is aware that this notice has been given and time is running. 

There must be legislation to make sure there is no final decree whilst there could be any financial disadvantage to either party because the financial proceedings have not yet concluded. Court fees should be reduced. We can’t see any real purpose in an artificial six-week period at the end of the 26 weeks. There to be conceptual thought given to what actually is the irretrievable breakdown.

We hope strongly there will be opportunity for proper consultation and discussion on these matters before draft legislation is presented to Parliament. No-fault divorce is to be welcomed. But opportunities for reconciliation and mediation must run alongside. They are essential to any modern, civilised divorce process, which this new divorce law rightly seeks to be.