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The traps in the Divorce etc Bill that could cause as much harm as finding fault
Feb 19, 2020, 16:18 PM
Meta Title :The traps in the Divorce etc Bill that could cause as much harm as finding fault
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Mar 5, 2020, 10:33 AM
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Traditional marriage etiquette recommends sending out wedding invitations 6-8 weeks before the big day. Under the proposed new divorce reform, a spouse might have the same amount of notice of the ending of their marriage.
With possibly the fastest divorce anywhere for a respondent about to be unleashed, Parliament must urgently reconsider the time frames in the Bill that advantage the applicant, who is also given the power to remove fairness, equality and civility from the process.
The irony is that the Bill is rightly being hailed as a triumph in seeking to end the formalised blame game. Yet the proposed law as drafted will fail to meet the two key principles set out in the original consultation paper:-
that the decision to divorce continues to be a considered one, giving spouses the opportunity to change course;
that they [the spouses] are not put through legal requirements that do not serve their or the state’s interests and can lead to ongoing conflict and poor outcomes for children.
Most people are aware of the proposed minimum 26 week timescale to divorce. However it is only 26 weeks for the applicant. The total time is broken down into two other time periods: the first 20 weeks and the second 6 weeks. The applicant only has to prove that the respondent has been notified that the divorce has started just in time for them to progress to the second 6 weeks. If the applicant wants to exert maximum harm and control over the respondent, they can wait until the very last minute, just before the final 6 weeks begins.
One might have thought that getting divorced in little more than 6 weeks would have spawned widespread media interest, ranging from frothing headlines to thoughtful pieces questioning the balance of fairness between the spouse who wants out and the spouse who does not. However this hugely significant pitfall has so far gone under the radar. Perhaps this is because it arises from a technical ‘detail’ of the time period running from when the applicant starts the process, rather than from when a respondent receives notice of it. The Ministry of Justice is aware of the problem, as it has been raised by The Law Society. So it cannot be argued later, when real examples come flooding in, that this was an unforeseeable consequence of defining when a time period begins.
It is worth reflecting also that even 26 weeks makes the proposed divorce one of the fastest in the world. A six month period may seem ample when both spouses agree on that direction, and the ability to issue a joint petition will be welcomed. Other jurisdictions not only have longer time frames, they often also have two different time periods, depending on whether the divorce is a mutual or unilateral act. Almost all count the passage of time as being the months or years of separation that occur prior to starting the process. The Bill has brought in a more unusual concept: the time runs only from the start of the divorce. This therefore makes all the intervening time a processing period, and the waiting and reflecting can therefore only take place as the divorce is already underway.
The fact that it is a processing period rather than a reflection period causes two more problems. The first is that in the first 20 weeks, any related proceedings can be started too. It would be much better if they were suspended, other than for emergencies, for a period of say 3 months. Though this would not provide a proper period of separation, as is available in other jurisdictions, it would at least give some space to reflect, assuming of course that the respondent is in the loop at this point also.
The second problem is that the only ground for divorce remains the ‘irretrievable breakdown of the marriage’ which is ‘proven’ from the initial start of the process by the applicant. It is hardly the best inducement for a couple to then begin reflecting on whether their marriage is saveable, just after one of them has declared that it is in irretrievable breakdown. It also begs the question of what happens when an applicant wishes to halt the process. Is some form of suspended marriage created, given that the irretrievable breakdown has already been ‘proven’? This may well be of special concern for some religious communities.
So what chance does the Bill have in meeting the first objective to prove a ‘considered’ process ‘giving spouses the opportunity to change course’?
One unavoidable but additional problem is the ease with which a spouse can now issue a divorce online. Instead of thinking, waiting, asking around for recommendations for solicitors, booking an appointment, discussing the process and perhaps seeing the first draft weeks later, the applicant can issue their petition online within minutes. Our culture has changed, and we must be alive to the unalterable fact that our online world can eliminate vital processing and reflection time. So how many spouses will grab their laptop late at night, perhaps even spurred on by substance use, and press the ‘nuclear’ button following what might have been a trivial or resolvable disagreement?
Perhaps that same spouse might regret their actions and say nothing to the other and take it no further (though the marriage may technically be in suspension from that point onwards). Or perhaps that same late-night applicant resolves to go further in weaponising their position, and decides to control the timetable to their exclusive advantage. As the first 20 week period runs down, that spouse can make plans and issue other court applications. They can also keep the respondent in the belief that their marriage is in tact until the very last moment.
It is not difficult to see how this would then totally undermine the second principle: to avoid ‘ongoing conflict and poor outcomes for children’. This is precisely what taking away the finding of fault was intended to do. However it is clear that an almost identical emotional impact, or worse, will be felt by those who discover that they have been controlled and kept in the dark, then left bereft at their marriage ending so suddenly. If that spouse, made to feel bitter, aggrieved and devastated, is also a parent, this disastrous start can filter through to the children and cause the co-parenting dynamic to become toxic for years thereafter.
The impact on financial matters could cause as much lasting harm as the impact of the applicant’s conduct. The applicant can have a 20 week start in organising their affairs (possibly literally too) and could even issue a financial application before the respondent is aware that anything is amiss in their marriage. With very limited time to come to terms with the emotional impact of the ending of their marriage, the respondent may have no time, or head space, to take any protective financial measures. There should be a ban on issuing anything other than urgent applications for an initial period, though even that would not help the spouse who is unaware that they are even in it.
The processing period of a divorce, once started, cannot be stopped by the respondent, as it is a unilateral act. At the point of final decree, a respondent would lose all the pension, insurance and other rights that they have by virtue of being a “spouse”. Whilst we can only hope that there will be warnings about this during the process for both spouses, the respondent is in a weaker position to do anything to prevent this situation. However it is not obvious what options there are to tackle this, even when the problem is known. There should be, but there is not, a presumption that the final decree cannot be made until a financial settlement is in place, provided a financial application has already been issued. Given all the online petitions which will now progress without solicitor help, this is another trap which could result in very significant detriment to the financially weaker party.
As the Bill makes its way through Parliament, it is only to be hoped that serious consideration is given to the urgent adjustments that need to be made to make it a successful reform. It would be a major opportunity lost if, in the pursuit of ending the blame game, even greater harm is created.