Yesterday I wrote here expressing my support for the introduction of a system of no-fault divorce, as recommended recently by Baroness Hale. Today I wanted to expand upon that by considering the practicalities of a no-fault system, something that Baroness Hale discussed and Marilyn Stowe touched upon here the other day. Just how would a no-fault system work?
This is not just a trivial question. The workings of the ill-fated Family Law Act 1996, which was supposed to herald the new era of no-fault divorce, were so arcane that I recall one lecturer at the time who was supposed to be explaining it saying that even he didn’t understand how it was intended to operate. This lack of clarity was one of the reasons why the legislation was shelved, and eventually abandoned.
I think it is accepted that no-fault divorce proceedings should be commenced by one or both of the parties filing with the court (or the administrative body that deals with divorce, if the courts no longer do) a statement that the marriage has irretrievably broken down. However, the complications arise when considering in particular four issues: whether there should be a ‘period of reflection’ before the divorce can be finalised, arrangements for any children, the financial/property settlement and whether the divorce may cause financial hardship to the party that did not commence the proceedings. I will deal with each of these points in turn.
The idea of a ‘period of reflection’ is ostensibly to give the parties an opportunity to reflect upon whether the marriage can be saved and to effect a reconciliation, but it also has the effect of making things slightly harder by preventing one party from getting a divorce ‘by return of post’. Under the 1996 Act the rules governing the length of the period were somewhat complex, but essentially it had the rather odd duration of nine months plus fourteen days from the day upon which the statement of breakdown was received by the court.
Do we really need a period of reflection? I’m not entirely sure that we do. Whilst the idea of a party obtaining a divorce within a very short period is not exactly appealing, my experience of doing divorce work for about twenty-five years indicated that people do not issue divorce proceedings lightly. In other words, it is very rare indeed for proceedings to be issued where the marriage has not irretrievably broken down. In those circumstances I really don’t see what is to be gained by making the parties wait a lengthy period before they are able to get on with their lives. My view is that if we must have a period of reflection it should be no more than three months, which is roughly how long an undefended divorce can take now.
The next question is: should the finalisation of the divorce wait until arrangements for any children have been sorted out? I understand that this is the case in some other jurisdictions, and the 1996 Act provided for the period of reflection to be extended by six months where there were dependent children. However, unlike the situation with finances, which I will come to in a moment, I’m not sure that arrangements for children should delay the divorce. Unlike the financial settlement (at least in respect of capital), arrangements for children are not fixed forever – they can change after the divorce. In any event, we have moved on since 1996 – then it was necessary for the court to consider the arrangements for children before allowing the divorce through, and the court could stop the divorce where it was not satisfied with those arrangements. This provision has since been repealed, and I don’t see any reason why it should effectively be re-enacted in a no-fault system.
Moving on, should the divorce not be finalised until the financial/property settlement has been resolved, as Baroness Hale believes? Again, I understand that this is the case in other jurisdictions, and it has always seemed right to me. Resolving finances is part of ‘disentangling’ the parties to the marriage, and should be dealt with simultaneously with the divorce. I realise, as Marilyn points out, that it can cause considerable delay but it is already effectively the way things are done here anyway – most people do not apply for the decree absolute until finances have been resolved. It also obviously ensures that one party cannot divorce the other without making proper financial provision for them.
Which leaves the issue of whether the divorce should be prevented where it causes ‘substantial financial or other hardship’ to the party who did not commence the divorce. Such a provision was included in the 1996 Act. In a sense this is something of a ‘non-issue’, as we have a similar provision already and the number of cases where the divorce is prevented is incredibly small. Accordingly, I’m going to say that I have no particular view upon the matter one way or the other, so long as any such provision keeps the number of ‘prevented divorces’ to the absolute minimum necessary.
As Marilyn Stowe said, no-fault divorce is fine, but the devil is in the detail. Let us hope that if the next government takes on the challenge of reform again, it gets that detail right this time.