Ending the blame game
With only a few months until the introduction of no-fault divorce, Dan Bindman speaks to CILEX family lawyers about the significance of the changes, the move to online divorce and how private arbitration is the answer for many families impacted by ongoing delays in the courts' system
CILEX Lawyers practising family law are facing a momentous change this year when, after nearly 50 years, the almost medieval fixture of fault in divorce is removed from the legal process.
What precisely this means for practitioners and their clients is uncertain, but they are unanimous in their view that the changes will be a healthy step in the right direction.
Meanwhile, life is slowly returning to normal after the early disruption of Covid-19, although delays in the system still exist – as indeed they did before the pandemic.
One consequence of the frequent court delays is the rise of private arbitrations, an alternative made increasingly attractive, despite the cost, because it brings reliability and predictability to people in often-fraught circumstances, especially when children are involved.
Having had to become used to remote hearings in short order, family lawyers have also had a chance to assess which family cases are suitable and which are not. There is agreement that some, particularly at the serious end of the spectrum, such as contentious matters where children are involved, should still be held in person.
Removing fault
No-fault divorce became law with the passage of the Divorce, Dissolution and Separation Act 2020 (DDSA), which is due to come into effect on 6 April 2022. Under the current legislation – the Matrimonial Causes Act 1973 – divorce can only take place if couples in England and Wales have been separated for at least two years (five years without consent), or unless one spouse blames the other for the marriage breakdown, citing either adultery or unreasonable behaviour.
At a recent Resolution conference, His Honour Philip Waller, a recently retired circuit judge, warned that although the framework of the new Act was clear, it was “not definitive” how the changes would work in practice. He promised guidance would be issued in advance on how it would operate.
“For many couples, bad feeling will still exist over the marriage break-up, but removing fault will greatly improve matters.”
Family lawyers expect that, for many couples, bad feeling will still exist over the marriage break-up, but removing fault will greatly improve matters. The new law will bring in a 20-week waiting period for a conditional order, as well as the chance to apply for a divorce jointly.
Juliet Harvey, a CILEX Fellow who is the first non-solicitor chair of family lawyers group Resolution, says she is “really excited” by the opportunity for couples to seek a divorce together, without blame. “Often we have couples coming in saying ‘why can’t we do this jointly?’ Under the DDSA it will be possible for them to do it jointly either without lawyers or with lawyers.”
For couples for whom the break-up is amicable, she continues, “it is very important for their children to know they had a good divorce – it would then be on public record that mum and dad jointly asked for this.
“Taking fault out of the first step where the couple interacts with the court, may help to bring the public forward to realising that attributing fault doesn’t help anyone, least of all the children.”
Experienced family practitioner Lisa Burton-Durham, CILEX Fellow and head of the Brighton family law team of Family Law Partners, enthuses that the possibility of jointly applying for divorce is “one of my favourite key changes to the law” and “a very positive step in enabling the parties to separate amicably with less impact on the children”.
She adds: “It has been a long time coming but I think many will agree it is worth the wait.”
But Ms Harvey and other practitioners doubt that removing fault from the legal requirement will take away the hurt often felt when infidelity has contributed to the break-up. Neither will it help with disputes relating to finances.
Hollie Styles, a CILEX Fellow at Birmingham firm Carvill & Johnson Solicitors, says: “If parents are entrenched in their views and want the time before the court to prove they are a victim or that their partner is a perpetrator, there is not much we can do.
“Some people need to have their time in court, while others don’t but need to hear a verdict from a judge.”
Kimberley Pender, a CILEX Fellow at Bury St Edmunds firm Greene & Greene, warns it is unclear how the DDSA will impact practice, adding: “With the latest domestic abuse legislation, the number of petitions quoting coercive or financial control is substantial. People have got these buzzwords in their heads because it’s all over the media.
“I imagine there will be many parties who, although they accept the marriage has broken down, will want to have their say.”
During the early days of the pandemic, the court system struggled to cope
Courts in meltdown
The last 18 months have been very difficult for practitioners, clients and the courts. Avoiding a transmissible disease makes good family relations especially tricky. Meanwhile, the extended close proximity that families were forced to endure brought many existing tensions in family dynamics to boiling point.
The early days of Covid in particular made practice difficult for lawyers who all of a sudden had to do everything remotely. Ms Pender relates how she had to carry out no fewer than 26 hearings, most of them by telephone, dealing with a court system struggling to cope.
“The courts were in meltdown. On occasion, I was left waiting with clients, because we allowed them into our offices, where they sat in large conference rooms behind perspex screens, wearing masks. I think it helped clients who would otherwise have been very isolated if they didn’t come into the office.”
Ms Styles says Covid has caused “massive problems for clients and lawyers” since early 2020. She adds: “With family law being so personal, we’ve lost the initial consultation with the client where we alleviate some of their concerns and we can empathise with their condition. That detracts from the service some clients feel they are getting.”
Charlotte Fedarb, a CILEX Fellow and advocate at Essex firm BTMK, says during lockdown she and everyone else worked longer hours. She sometimes spoke to clients later than normal because of the need to adapt to different childcare arrangements.
Ms Harvey says the judiciary “have had to adapt quickly to dealing with cases either by telephone or video and we’ve had to do the same. Both sides have [also] had to deal with paperless working, electronic bundles, and it is very different dealing with a case with somebody at the end of the screen”.
But she acknowledges that there were cost advantages for clients. They were no longer hanging around the court waiting to go in – or paying expensive lawyers to do so.
Online divorce
As well as cost, the increasing digitisation of the court process in family law had benefited clients by speeding up the process, Ms Harvey observes.
Being able to submit an application through court portals is far quicker than the old paper process: “We are getting stuff back within a month rather than six months.”
Ms Burton-Durham says a key aspect of digitisation, the new online divorce service, has been a “game changer”. Although not without its issues, it has sped up the process and made it more efficient.
“It is a fairly easy process to navigate, provided the divorce is simple and straightforward. It can’t deal with anything nuanced and once an error has been made, it’s far from easy to rectify.
“Probably the toughest problem with the system for clients to confront and a recurring headache for family lawyers, is the issue of delay.”
“It’s particularly difficult for those people not using a lawyer to navigate their way through the proceedings, where it is easy for mistakes to be made.”
Probably the toughest problem with the system for clients to confront and a recurring headache for family lawyers, is the issue of delay. Covid has undoubtedly exacerbated a lot of the problems that already existed.
Many of the problems are caused by a lack of judges, says Ms Harvey, along with a lack of resourcing generally. Despite a recent judicial recruitment round, it will take some time before new judges are fully trained.
Having court dates allocated is a particular problem. Where she practises, in East Anglia, it takes 48 working days for a date to be allocated and the case may not be heard for up to six months. In cases involving small children, she points out, this can result in “a significant proportion of a child’s life when they are out of touch with one of their parents”.
Ms Burton-Durham recounts one two-day final hearing she has, which was pulled at the last minute despite being in the court diary for five months. It has since been relisted for May 2022, a full 18 months after the application was made.
Ms Pender has one case where the first appointment was in September but the next hearing is not listed until May 2022. On the other hand, another case where the first appointment was made at the Central Family Court in London in October, was listed for 4 January 2022.
She suspects the disparity is that cases in the regional courts in Cambridge, Peterborough, Lincoln, Norwich or Chelmsford, have fewer judges sitting “so they can’t get through the same volume of work”.
Arbitration provides an alternative
The uncertainty that comes with delay is not just unsettling for families in crisis, it can be expensive too. A partial solution is private arbitration. Ms Harvey says arbitration is becoming more common and has increased along with the delays. It has really “taken off” with Covid.
“With arbitration you can get a judge of the party’s choice for a whole day and you know you are not going to be told the day before ‘we are really sorry but the judge is unavailable’.
“For those for whom money is tight, it might actually be preferable and more cost-effective for them to go to arbitration because, although you have to pay the arbitrator’s fees, you can have it dealt with in three to six months rather than potentially 12-18 months in litigation.”
Ms Burton-Durham says she and her colleagues are encouraging clients into the arbitration process where possible. “It is fair to say that there is still a nervousness about arbitration in some parts of our profession because it is new.
“It doesn’t always suit one party to engage in the process, because delay favours them for whatever reason, but ultimately our clients will be guided by us. Family lawyers have a duty to promote any process that is going to provide a more focused, cost-effective and amicable outcome that is in the best interests of the family as a whole.”
All the CILEX practitioners agree that family law is an excellent area in which to practise and recommend it to new lawyers just starting out.
Ms Fedarb, who has worked in family law for 16 years, says: “I have a varied caseload ranging from divorce through to care proceedings. One day I am looking through bank statements and the next I am assisting a client who has involvement with social care.”
Ms Pender, who has been practising family law for over 20 years, agrees: “It offers such a wide variety of clients, of court attendances, whether it’s in respect of Children Act, financial or divorce cases and so on.
“There are still issues raised to this day that I have to research thoroughly because I haven’t come across them before. I wouldn’t hesitate to recommend it to anybody thinking of law. No two days are the same.”
CILEX Lawyers working in family law report that there is generally mutual respect between all lawyers in the field. However, one of the most established, Juliet Harvey, “vividly recalls” a barrister saying to her a few years ago ‘it’s amazing what legal executives can do these days".
She gave him short shrift, pointing out that CILEX Lawyers send him work and in any case have always been able to do a lot.
But she says that, notwithstanding the occasional dinosaur, “the juggernaut is starting to move” towards genuine parity. In fact, CILEX Lawyers have a “huge advantage” over the other branches of the profession because they train on the job and ‘earn while they learn’.
Unlike solicitors, she observes, “you come out as a fully fledged fee-earner, having worked for a number of years in that role”.