Family 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.

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.

• A litigation free 13-week period at the beginning to allow proper reflection and consideration when Forms A cannot be issued. This will allow the parties proper time to review the benefits of counselling, perhaps reconciliation or at least one spouse coming to terms with the reality of the divorce.  It would avoid respondents to an unexpected divorce notice, perhaps not wanting a divorce, to find an immediate fast timetable for financial disclosure when they just want to come to terms with the divorce.  It would not prevent applications for interim support, injunctions or of course children or domestic violence orders.  Voluntary disclosure and mediation could continue.  There would be no prejudice by this provision and considerable benefit.
• No decree absolute if there would be financial prejudice to an applicant for financial provision in existing Form A proceedings. The present case law, reflected in the Bill, puts the burden on the respondent to show a material level of risk of financial prejudice to prevent the decree absolute.  This risk arises when post decree absolute the paying party dies before a settlement. The claimant is then no longer automatically entitled under a will or policies. A simple test of any prejudice should delay the decree absolute. The proposed law gives too much benefit to the applicant.
• A review of whether the six-week period of decrees is still needed, given the reasons are now entirely historic. The 26-week period should run straight from service until decree absolute.
• The assertion of an irretrievable breakdown should be at the end of the process and not on the giving of notice. The evidence of irretrievable breakdown would be the expiry of the period of notice, and this is when it should be asserted by the applicant.
• The certificate of reconciliation, a dead letter soon after the 1969 changes, should be scrapped altogether.
• The language and the description in the legislation should be dramatically improved to make it understandable to lay parties as well as being good content in law.
• There should be explicit encouragement and signposting towards counselling and marriage support services and towards ADR and other forms of out-of-court resolution.
• The fee of £550 divorce fee should be significantly reduced.  It is one of the highest in the world.  It would be no longer appropriate in a process of no judicial scrutiny and much reduced administrative involvement.  It is discriminatory against the poor and results in limping marriages where the parties cannot afford to divorce.  This is not for the legislation itself but Parliament should make sure it happens at the same time.

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