What’s not to like about the no-fault divorce consultation?

Divorce|Industry News|September 17th 2018

As I’m sure has been, or will be, reported elsewhere on this blog, the Ministry of Justice has now published its much-anticipated (thanks to a news leak a couple of weeks ago) consultation upon the reform of the legal requirements for divorce, i.e. the introduction of a no-fault divorce system. I don’t propose to repeat the details here. Instead, I thought I would briefly give my views on the proposals.

The Government proposes that the sole ground for divorce, ‘irretrievable breakdown’ be retained and that the divorce process is commenced by one or both of the parties filing with the court a notice of intention to divorce, stating their belief that the marriage has broken down irretrievably. The only thing I would say about this is: why do we even need the word ‘irretrievable’? Doesn’t ‘broken down’ say it all? To me, the expression ‘broken down’ with reference to a marriage is different from when it is used in other contexts, such as in relation to a car. We all know that in most cases a car that has broken down can be repaired, but when someone says their marriage has broken down, we take that to mean that it has ended. If it had not, they would say that their marriage is “in trouble”, or some such expression. And in any event, sometimes the breakdown will prove not to be irretrievable, and the parties will reconcile. Anyway, perhaps I am just being pedantic – there is likely to be little if any practical difference between “irretrievably broken down” and just “broken down”.

There is one slightly weird thing mentioned in the consultation about the irretrievable breakdown that I don’t understand. It says:
“In the two-stage decree process that we propose to retain, the court would not be able to grant the first and interim decree (the decree nisi) if it was not satisfied that the marriage had broken down irretrievably.”

Eh? How can the court not be satisfied that the marriage had broken down irretrievably when one (or even both) of the parties had filed a notice to that effect? Is the court going to investigate whether, notwithstanding that notice, the marriage has indeed broken down? I think not. I can see that there might be some instances of fraud where the notice had been filed by someone else, but otherwise, the ‘satisfaction’ point makes no sense to me.

On a related point, the Government proposes that respondents will not be given the chance to challenge the petitioner’s statement that the marriage had irretrievably broken down. In other words, it will not be possible to defend the divorce. This must be right. As the consultation says:
“The Government believes that as a general rule it serves no purpose – whether to the parties or to the state – to keep the opportunity to contest the divorce.”

Exactly. Hard though it may be upon respondents, there is no point whatsoever in keeping a marriage going when one party wants out. This is, of course, the message given to us by the Owens case, and is central to the entire reform.

A headline in The Times over the weekend informed us that the Government is proposing that there be a minimum ‘period for reflection’ of six months between the decree nisi and the decree absolute, which will do away with the ‘quickie divorce’ Of course, there never has been such a thing as a ‘quickie divorce’, save in the eyes of newspaper headline writers. The six month period may mean that for some it will take longer to divorce than under the current procedure, but for most, it already takes at least as long to divorce as the new procedure would entail.

As for myself, I’m not sure that six months is actually required. Would three months not be enough time for the parties to reflect upon whether they have done the right thing? Why make them wait so long? And remember, there will be a delay between commencing the proceedings and the pronouncement of the decree nisi, so the entire process will take longer than six months. I can’t really see why people should be made to wait so long to move on with their lives. One might say that financial arrangements need to be sorted out, but they often take longer than six months anyway.

And those financial arrangements bring me to my last point upon the proposals. The Government proposes that the current provisions on separation divorces enabling the respondent to ask the court to delay the divorce until their financial needs have been provided for, or (in the case of five year separation divorces) even to refuse the divorce on the grounds that it will cause them to suffer grave financial hardship will be repealed. I can imagine that some might object to this, but for my part, I have no problem with it. Such cases are already extremely rare, and it is quite possible for respondents to seek interim financial ‘protection’, as soon as (or even before) the divorce has commenced.

In summary, I don’t find much to dislike about the government’s proposals and hope that they mean we will soon finally have a modern no-fault divorce system. Of course, we mustn’t count our chickens. We are not there yet – there is still time for opponents to scupper the proposals. However, it was suggested that the leaking of the news of the consultation was ‘testing the waters’ to see what level of opposition there would be to the reform – if there was too much, the idea might be dropped. If that is so, then the publication of the consultation would indicate that the test was passed, as the opposition is not considered to be too great. That would be a very good sign, especially to someone like me who has been around long enough to witness perfectly reasonable proposals being scuppered in the past by those unwilling to bring our divorce laws into the modern age.

You can find the consultation here. If you have any views upon it, please do respond by completing the online survey. The consultation closes on the 10th of December, and so responses must be in by then.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(3)

  1. spinner says:

    This is a good start, next we need a CMS style formula to work out spousal maintenance with some maximum length of time for payment as in most other countries, prenuptial agreements to be respected by the courts without exception as in most other countries and then maybe we can drag English family law into the 19th Century.

  2. JamesB says:

    Thank you for the link. I will put something into there.

    With the new formatting I will try and limit my responses to be more conventional.

    The post does not seem to indicate whether the entirity of the MCA (i.e ancillary relief) is up for review. This leads me to think that it is not. To do one without the other seems to be missing the point, as I think the Government sadly are again here.

    The point is, the ‘poisoning of the well’ as put by the establishment is not the name calling in the prayer for dissolution, it is the unfairness and unbalanced settlements which cause the problem. A divorce lawyer calling for more divorces is to be expected.

    In the Untouchables film, there is a scene where the judge says, please take this Jury and swap it with the one next door. I think we could do a lot worse than to take the whole Scottish system for divorce.

    It continues to upset me that the professionals in divorce seem to be radical feminists and for that reason I think John for posting the consultation link. I will complete it and urge as many people to as possible.

    The responses will probably be ignored in favour of who shouts loudest at lobbying such as women’s aid and gingerbread, but I think it important to try and urge F4J and FNF to respond in full too.

    I have said it before, but the words should change too, calling it a prayer sounds bad.

    Other ideas, well, as I may have said, like the Scottish system, one year with consent and two without seems reasonable as does allowing pre nups. That also allows people to say, I will give you the divorce in a year if you don’t stitch me up in the finances.

    The whole, bloke out on his ear with nothing in three months as John proposes is inflammatory and destructive to marriages (and divorce lawyers).

  3. Andrew says:

    Please answer and urge MoJ to think again about extending the interval between nisi and absolute. And urge them to eliminate the interval altogether if the parties apply jointly.

    Sorting out the law of divorce finance to restrict SM and respect prenups is for another day.

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