Conflict zone

Three years on from the introduction of ‘no-fault divorce’, Catherine Baksi talks to CILEX family lawyers about the impact of the legislation as well as ongoing court backlogs, the ‘one couple, one lawyer’ model, and recent changes allowing press reporting of family cases

Heralded as the biggest shake-up of matrimonial law in half a century, the Divorce, Dissolution and Separation Act 2020 was designed to end conflict between splitting couples by removing the need for one party to make allegations about the other’s conduct.

The Act came into force in April 2022 and was only achieved after years of campaigning.

The final catalyst for change came in 2018, when the Supreme Court ruled that Tini Owens must remain married to her husband Hugh, who contested their divorce, until the couple had been separated for five years.

Lawyers welcomed the end of the ‘blame game’ but warned the Act did nothing to address the way that disputes about financial provision and children were dealt with, often the biggest causes of conflict when relationships ended.

The most recent figures from the Office for National Statistics show that 80,057 divorces were granted in England and Wales in 2022 — down by almost 30% compared with 2021 and the lowest number since 1971.

That fall, say lawyers, might in part be the result of minimum waiting periods which were introduced by the Act.

Reducing conflict

No-fault divorce, lawyers report, has made the process of separating easier and less stressful for couples. Chartered Legal Executive Lisa Burton-Durham, group director and head of the Brighton team at south-east firm Family Law Partners, says this has resulted in many dealing with it themselves, saving them money.

“Removing the need to blame the other party in order to prove the breakdown of the marriage or civil partnership – where the separation was less than two years ago – has undoubtedly helped reduce conflict at a time when emotions are already running high,” she explains.

Having to apportion blame at the start of the process often had a damaging impact on the parties’ future relationship, particularly as co-parents where children were involved.

The change in approach, and because couples can jointly apply for a divorce, has meant that “couples are able to be solution-focused from the outset”, says Ms Burton-Durham.

This, she adds, “enables them to concentrate on resolving the broader issues such as the arrangements for their children or sorting out the financial aspects of their divorce”.

Kirsty McKenzie, a trainee legal executive in the Manchester office of boutique family law firm Hall Brown, explains that while the change “has not entirely removed the upset which spouses may feel about the circumstances in which their marriages ended”, the ability to make a joint application gives individuals a greater sense of control over their divorce.

This, she suggests, is reflected in the increasing number of people choosing to undertake the process without a lawyer. She cautions, however, that the rise in DIY divorces without help from a lawyer risks the potential that the couple may be “unaware of the need for and importance of a financial remedy order to stave of problems in the future”.

Cooling off

On the downside, Ms Burton-Durham says that the 20-week cooling-off period can be difficult for clients who want to finalise their financial settlements more quickly.

Under the previous regime, it was possible to get a divorce in 12 to 14 weeks. Taking into account processing times, it takes at least 30 weeks under the new system.

“Having to wait until a conditional order has been made in the divorce proceedings – which takes a minimum of 20 weeks from the date of the divorce application – before a financial remedy order can be sent to the court for approval can be a source of frustration,” she says, particularly for couples who have already reached an agreement and want it finalised.

“Under the previous regime, it was possible to get a divorce in 12 to 14 weeks. Taking into account processing times, it takes at least 30 weeks under the new system” 

Stressing the need for couples to get legal advice early on in the process, Chartered Legal Executive Juliet Harvey, a partner in the family law team at top 50 firm Birketts, suggests that doing so would help couples understand the timings of the processes, so that their divorce can be timed to dovetail with their financial agreement.

The abolition of blame has changed divorce for the better, she says, but “there are still a few couples out there who are unaware of the changes and still wish to ‘blame and shame’ the other spouse”.

One fall-out from removing blame from the divorce process, adds Ms Harvey, is that some people – often those who are unrepresented – will try to apportion blame in other ways, such as by raising issues in children proceedings or seeking to argue about the conduct of their former partner in financial proceedings.

Charlotte Fedarb, a Chartered Legal Executive and advocate at BTMK in Essex, notes that the change has eased workloads.

“Previously you would have had cases which clients would wish to proceed on the basis of two years’ separation and approach the other side for their consent, but without any responses, which caused delay as then you would be required to prepare the petition based on unreasonable behaviour,” she explains.

Additionally, she used to have cases where she prepared a petition based on unreasonable behaviour, only for the other side to object. This also caused delay because that party would often refuse to return the acknowledgement of service, necessitating bailiff service.

Financial settlement

“Most couples are often surprised that there is no one definite or formulaic answer to their financial settlement and the discretionary nature of family law feels like a minefield, particularly when lawyers can only provide advice on a range of reasonable outcomes,” says Ms Burton-Durham.

To address the acrimony, uncertainty and expense created by arguments over the division of assets and maintenance payments, the Law Commission recently published a paper on financial remedy orders after divorce, looking at how to update the Matrimonial Causes Act 1973.

In its scoping report, the commission suggests four models for reform, including simply codifying the existing law, or codifying the law plus providing statutory reform on discrete issues like pre-nuptial agreements.

It also considers introducing a set of underpinning principles and objectives to guide the court’s discretion and, more radically, creating a “matrimonial property regime” that would provide rules for dividing up property on divorce, with the court’s discretion strictly confined.

“There are perhaps few family lawyers who would disagree with the commission's central conclusion that the current law does not provide the kind of framework which lends itself to a fair outcome,” says Ms McKenzie, who would welcome increased certainty in some areas and a change to make pre- and post-nuptial agreements legally binding.

Most experts agree with the need for greater certainty but have reservations about removing judicial discretion.

From a lawyer’s perspective, Ms Burton-Durham believes that a discretionary approach is best, because it enables bespoke solutions for the families involved. She accepts, however, that clients want more certainty, particularly when it comes to spousal maintenance.

Given the length of time often taken to translate Law Commission ideas into legislation, no one anticipates change soon.

Cohabiting couples

One area that the government has indicated it will look at later this year is rights for unmarried couples when they split up.

Cohabiting couples are the fastest-growing family type in the UK, with around 3.6m couples living together outside of marriage or civil partnership.

“Cohabiting couples are the fastest-growing family type in the UK, with around 3.6m couples living together outside of marriage or civil partnership” 

The Labour Party committed to giving cohabitants greater rights and protections in its elections manifesto.

Recently, Lord Ponsonby of Shulbrede, the minister in charge of family justice, marriage and divorce, said in a letter to Andy Slaughter, the chairman of Parliament’s justice select committee, that a formal consultation would be issued this year “to build public consensus on what cohabitation reform should look like”.

Many lawyers, like Ms Harvey, believe there is an “urgent need” for reform to prevent the unfairness experienced by those who still believe in the myth of ‘common law marriage’ and are unaware that on separation their financial claims are not dealt with in the same way as those who have been married.

Others argue that reform in this area would infringe the civil liberties of couples that have decided not to get married.

Court backlogs

As seen across the entire court system, a backlog of cases means that there are long delays in the family courts, leaving thousands of children in limbo.

Public law cases take an average of 43 weeks to resolve, far beyond the 26-week statutory maximum, and private law matters are taking an average of 44 weeks to conclude.

Lawyers report that the situation is driving clients to consider non-court methods to resolve their disputes, like mediation, collaborative practice, early neutral evaluation and arbitration.

“For some people, learning that they do not need to go to court to reach agreement on matters about their finances or arrangements relating to children can be revelatory,” says Ms McKenzie.

One couple, one lawyer

The ‘one couple, one lawyer’ model is also becoming more common, as public awareness of it grows.

Ms Harvey is one lawyer who is trained to offer the service in accordance with the Resolution Together model.

The ‘one couple, one lawyer’ model is also becoming more common

“I’ve been able to pull together skills learned in my training as a collaborative lawyer and mediator to work with couples together and help them to create and craft bespoke solutions for their families,” she says.

Advising couples together she explains, involves a “very different dynamic from my usual ‘day job’ of what might be described as principled negotiation” and the process gives her a “huge sense of satisfaction”.

Sarah-Jane Riddell, a senior associate solicitor at Family Law Partners, who also offers the service, stresses that safeguarding is vital throughout the process. “Often the couples are still living together and sometimes tensions can mount during the time they are working together,” she says.

In order to provide all-round support for clients, she adds that in the firm’s model, which is called Agreeable, most joint meetings are conducted by the lawyer, who is always a trained mediator, and a therapeutically trained family consultant.

Open courts

Another innovation in family justice that, as a by-product, is driving couples away from court, is the move to allow wider press reporting of cases. The aim is to increase transparency and public understanding of the work of the family justice system.

A court reporting pilot that started in January 2023 in three courts in Leeds, Carlisle and Cardiff – allowing journalists and legal bloggers to report on what they saw and heard in family courts if a transparency order was granted – was extended nationally in January.

Ms Harvey suggests that the change, described by Sir Andrew McFarlane, the country’s most senior family judge as a “watershed moment”, will result in more clients wanting to use non-court options to keep matters private. Indeed, she is already seeing it.

There is concern among some lawyers that only wealthy clients can afford to turn to out-of-court options, creating a two-tier justice system.

Ms McKenzie suggests another potential downside: “For those who remain convinced of the merits of taking their cases to court, there is the potential for people to limit the kind of evidence which they provide or even refuse to disclose information.” In their eyes, she adds, “disclosure might be equated with exposure”.

One of the factors contributing to the backlog of cases in the family courts is the removal of legal aid for most family law disputes, leaving more parties to represent themselves in court and making hearings longer.

“I see far too many cases where one or both parties are unable to access legal advice, leading to greater burdens on the already overstretched court system, which in turn places more pressure on separating couples,” says Ms Harvey.

She like most lawyers, wants to see government funding for early legal aid to help couples understand their legal rights and responsibilities and prevent problems escalating.

“There needs to be government provision for funded early legal advice so that anyone facing separation, divorce or family breakdown is at least aware of their options, and, where appropriate, signposted to other routes to resolution away from the family courts,” she says. Such a move, say lawyers, would reduce court backlogs and the distress of clients waiting for resolution.