The government’s commitment to no-fault divorce is excellent news to remove the unnecessary bitterness and inappropriate blame from the divorce process. Parliament decided in 1996 that no-fault divorce was appropriate and 23 years later we are still waiting. Whilst very welcome, the draft legislation itself is very poor. It is cumbersome in its language. It is hard to understand the process. Crucially it has several major shortcomings which will have a prejudicial impact on respondents and those making financial claims. In particular, its failure to provide that the period of notice runs from the date of service is fundamentally flawed, probably human rights non-compliant and cannot be allowed to pass through Parliament. It is a charter for the unscrupulous petitioner who wants to avoid the respondent having the full 26 weeks. Amendments are needed before it becomes law.
However, within the Bill itself are a number of significant shortcomings and matters of much concern for the family law profession, anxious about the interests of their clients and to obtain a fair process. A number have been raised by the Law Society in their parliamentary briefing paper found at the House of Commons library, here.
Chief amongst the concerns is when the 26-week period starts. It would be presumed that it would once the recipient, the respondent, was aware of the divorce notice being given. Amazingly, and with the full support of resolution, the Ministry of Justice proposes that the 26-week period runs from the start of the proceedings, when the notice is given to the court office by the petitioner, irrespective of when it is received or known by the respondent. Accordingly, the respondent will have less than 26 weeks, quite possibly much less than 26 weeks. It means a 26-week period is meaningless for the respondent. It’s actually meaningless for the entire no-fault divorce process insofar as it has to be a process for both spouses.
Several delays can occur from the start of proceedings, meaning that the respondent is aware of the divorce much later:
Parliament is creating yet another work of fiction in the bibliotheque of divorce. The intention of Parliament of divorce by notice over 26 weeks actually applies only to the applicant for the divorce. The recipient respondent will have less, perhaps much less and possibly even only a few weeks and yet have no opportunity to object. Any idea that there would be reflection and consideration over this period is completely absent in practice.
Under the no-fault divorce provisions, this German husband would only have had notification four months into the six-month period, of which six weeks of the remaining eight weeks were the period between decrees. It’s easy to see how other countries will condemn this unfair law.
This long-awaited no-fault change, at a time when most other westernised countries introduced no-fault 20 or 30 years ago, allows our country to create a modern divorce law for the mid-21st century. It should allow divorce when the marriage has broken down and a period of time has elapsed. But it should also allow opportunities for reflection and consideration, without the helter-skelter of other ancillary litigation. It should give no artificial benefits of being the applicant, in controlling timetable or financial outcomes. It must be fair between the parties. It must be easily understood and comprehensible by the public in circumstances where most will undertake their own divorces. Unfortunately at the moment the draft legislation before Parliament fails on these counts.
Family lawyers support no-fault divorce. There is delight that at last this legislation will be going through Parliament. But for whatever reason the drafting is very poor and inadequate. Serious amendments are needed. With suitable changes, there is yet opportunity for this to be a modern 21st century divorce law for modern families who do not want to play the blame game through the law courts but expect fairness for both and opportunity to reflect.
David Hodson OBE MICArb is a co-founder and partner at The International Family Law Group LLP, London. The views expressed in this article are his own and not intended to represent any organisation with which he is involved
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