On 6 April 2022 family lawyers celebrated the long awaited arrival of no-fault divorce. Couples looking to bring their marriage to an end now no longer face a choice between apportioning blame, with a fault based petition, or facing a delay of two or five years to avoid the need to play the “blame game”.
This reform to the law was something many family law professionals had campaigned for over a long period of time. It was long overdue and required a monumental and sustained effort from many professionals and organisations. The cause was certainly aided by the wide spread publication of the case of Tini Owens in 2018, whose husband successfully defended her behaviour based petition, forcing her to wait until five years after they had separated before she could end the marriage. Lady Hale (as she then was) commented that she found the case “very troubling but it was not for judges to ‘change the law’”. Almost four years after that decision, the law has finally changed.
Family law reform tends to move at a glacial pace and I am often frustrated at what I perceive as the lack of priority given by our law and policy makers. According to Government statistics, in the financial year ending 2021 it was estimated that there were 2.3 million separated families in Great Britain and 3.6 million children in those separated families. Family law affects so many of us, either directly or indirectly – the system must work for modern day couples and their families.
No fault divorce should rightly be celebrated as a positive step for divorcing couples and their families, but there is still much to do to make the process of separating (for both married and unmarried couples) less painful and costly. I spoke to a previous client, a therapist and a divorce coach to gather thoughts on the new fault divorce regime and future changes in family law, and also share the thoughts of some of my colleagues in the family law team at Kingsley Napley below.
A VIEW FROM THE CLIENT (ANONYMISED)
Thoughts on no fault divorce: “I think no fault divorce is a positive step simply because in some cases nobody is at fault. I imagine some couples had to make up a list of “faults” under the old system which would have led to unnecessary stress and upset. Also this should reduce costs for couples getting divorced. I remember the “list” being a source of frustration and dispute in my divorce.”
Thoughts on future change: “I think pre-marital agreements that divide assets decisively and clearly in advance could be a good idea to speed up divorces, reduce costs and arguments. Child maintenance that is not paid despite being agreed is another area to tackle as it can cause massive financial problems for the parent receiving it but who isn’t as well off if agreed childcare agreements are not being respected. Ultimately children lose out in these cases.”
A VIEW FROM A THERAPIST
Annmarie Carvalho, integrative counsellor and founder of The Carvalho Consultancy, is an expert on the emotional side of divorce. Before training as a counsellor, Annmarie worked as a family lawyer for many years and she now delivers training to lawyers on the emotional journey of clients going through separation.
Annmarie’s thoughts on no fault divorce: “This is a long overdue change that reflects the reality of how many people feel about divorce - that everyone has their faults but ultimately it serves no one for those to be given undue air time in a divorce. So this change sends an important message to clients - that time won’t be spent on finger pointing and that instead the process will be future focused and geared to working out what’s best for the (separated) family as a whole and particularly with an eye to any children involved.”
Annmarie’s thoughts on future change: “I think that there should be far less discretion in financial awards on divorce and more standardisation and guidelines on how assets are to be divided on divorce. That would further reduce the scope for people to bring fault or blame into this arena. A good start would be revamping the Form E and removing some of the narrative sections such as the one on bad behaviour/conduct as such sections exacerbate the tit for tat messiness that some divorces can descend into.”
A VIEW FROM A DIVORCE COACH
Claire Black is a specialist Divorce & Break up Coach, and Master NLP Practitioner. She works with individuals, both men and women, through break up/divorce and beyond, enabling them to redefine themselves, create a new radiant life, and ultimately look back with pride.
Claire’s thoughts on no fault divorce: “As a divorce coach I work with clients going through divorce, empowering them to handle the emotional aspects of their experience with confidence, calm and clarity. The requirement to apportion 'blame' previously meant that right from the start, the legal process was adversarial and sought to apportion fault.
I have worked with many clients who waited for 2 years rather than apportion blame in order to minimise emotional mud-slinging, so that they could concentrate on child arrangements and financial division of assets.
Others who have wanted to use their petition to punish their ex or point out their 'wrongdoing' felt disappointed that the court system does not take fault into account (in most cases). The new rules make this much clearer. Although some may feel their views will be unheard, working through your feelings with a coach or therapist is a much healthier way to deal with the emotional upheaval of any separation.
I have also worked with clients who are courageously ending an abusive marriage. Whilst filing for divorce is a daunting prospect, the knowledge that there is no requirement to list reasons is a comfort, as is the fact that the divorce can no longer be contested.
No-one can be forced any more to stay in a marriage in which they are unhappy - like one of my clients, whose list of unreasonable behaviours was deemed not serious enough by the court, meaning that she had to redraft the petition, using more serious examples - which both she and her ex-husband found distressing (and expensive!)”
Claire’s thoughts on future change: “Divorce is for many one of the most traumatic of life's experiences, and the assumption that it is simply a legal process is, thankfully, an assumption of the past. Often, the emotional journey through separation can increase conflict and stress, and therefore costs.
Increasingly solicitors are working side by side with coaches, therapists, parenting experts, financial advisers and planners to create strong support teams for each client, according to need.
I would like to see this becoming the norm, with every initial meeting with a new client covering the creation of a great team.”
Views from Kingsley Napley:
CONNIE ATKINSON – PARTNER AND MEDIATOR
Connie’s thoughts on no fault divorce: “It is not helpful for the beginning of an often amicable separation to start with having to accuse your partner of a number of incidents of unreasonable behaviour. Removing the need for this starts the divorce us on a much more constructive path.”
Connie’s thoughts on future change: “Specialist therapeutic support to assist separating couples. The financial and children issues would be resolved more easily if parties could truly focus on what was best for the whole family without the reasons for or pain associated with the separation impacting too severely on negotiations.”
LAUREN EVANS – PARTNER AND MEDIATOR
Lauren’s thoughts on no fault divorce: “Joint applications will enable couples to decide together as adults that their relationship has run its course – this will help set the tone for the transition from husband and wife into a co-parenting relationship in which they share parental responsibility and decision-making for their children.”
Lauren’s thoughts on future change: “I’d like to see law reform to give legal rights for cohabiting couples when they separate because, contrary to what a lot of people believe, there is no such thing as a common law marriage!”
CHARLOTTE BRADLEY, HEAD OF KINGSLEY NAPLEY’S FAMILY TEAM AND MEMBER OF THE FAMILY SOLUTIONS GROUP
Charlotte’s thoughts on no fault divorce: ‘’No fault divorce is a positive step, but it’s only one part of the jigsaw when parents are divorcing. The potential for battles over children remains. It is therefore vital that this new law is not just symbolic but leads to fundamental change to reduced conflict arising from separation’’
Charlotte’s thoughts on future change: ‘’We still need to do much more to support separating families – and early on - to help reduce conflict for children and achieve better outcomes without always resorting to the family courts as a knee jerk response. I would love to see many of the Family Solutions Group’s recommendations come into fruition and in particular see a government department taking responsibility for the needs of the family following parental separation’’.
The author – Stacey Nevin – senior associate and mediator
My thoughts on no fault divorce: “I always found it astonishing that a person or couple could not cite that they simply no longer wished to be married, and instead had to justify why the marriage had come to an end, simply adding to the pain and difficulty of the process. I believe the new no fault divorce process removes an unnecessary layer of difficulty (and cost) for divorcing couples, that will hopefully make it easier for discussions on related matters (the financial arrangements and arrangements for children). The introduction of joint divorce applications is also hugely positive. For some couples, it’s important to feel they have taken this step together particularly when they are informing their children and family of their decision.”
My thoughts on future change: “I think therapeutic and holistic support should be available to all couples and families going through a separation, and individuals should be signposted to this at the outset (possibly by way of a postcode search on the online divorce portal at the point of filing). I still remember the disastrous way I was told my parents were separating over 20 years ago like it was yesterday. Had my parents had better support, I think it would have been an easier conversation for all involved. Not everyone knows where to find or how to access the right support, so signposting those to it as the norm could help couples and their children both during the process and long after. I would also like to see a greater onus on family lawyers to take care of the language they use. We should be helping families, not antagonising an already difficult situation, and there is no doubt in my mind that highly charged, aggressive correspondence has a negative impact on clients and therefore their children. We should help not hinder a positive co-parenting relationship for our clients, and client’s interests can be protected without resorting to unhelpful language.”