The first anniversary of the change in divorce law seems like an opportune moment to reflect on where we are now.
I have written before about my misgivings in relation to the statutory changes that were implemented in April 2022.
Unfortunately, the situation which we find ourselves in is worse than anticipated.
The law change in April 2022 created fault free divorce. That means that any spouse can institute divorce proceedings for any reason, no matter how minor, and that the recipient party has no say in whether there should be a divorce or not.
This, in conjunction with the online divorce system, means that it is now easier to institute and conclude a divorce than to deal with your weekly grocery shop online.
The effect is that the process is so easy and so accessible that a significant number of individuals seek no legal advice whatsoever in relation to their divorce and associated issues. Focus is on obtaining the final order of divorce rather than resolving, properly documenting and properly organising the other necessary constituents of a relationship breakdown. As a result of the absence of advice there are now, and will continue to be, any number of individuals who are divorced and are blissfully ignorant of the potential exposure for them going forward.
It has always been a necessary element of the advice given to divorcing parties that the final order of divorce (or decree absolute as it was) is only part of a whole equation. All a decree absolute ever did was get the parties unmarried. It had no impact on the ability of either party to make applications in relation to the financial or property aspects of the relationship going forward. There is some pretty horrific case law (depending on your perspective) from the old legislation whereby financial claims were resurrected some years after a divorce was concluded, particularly where one party’s financial circumstances have changed for the better (or indeed worse) post-divorce.
I foresee that we will in the coming months and years see increasing numbers of individuals who have dealt with their own divorce only to find that they are subsequently facing a financial claim made by their former spouse or indeed that they are in need of making such a claim.
The situation only gets worse if one party has remarried. Once that has happened the remarried individual loses all ability to make financial applications in respect of the now defunct marriage. There are, I predict, hundreds if not thousands of people out there who, for instance, are completely unaware of their ability to make an application for a pension sharing order in respect of their ex-husband or wife’s retirement fund. They would have done their divorce online completely unaware of the nature of the claims they could make or indeed what their justified and equitable entitlement is. By the time they have remarried it is too late.
As a side issue, the state of the family courts is such that we have a family justice system which is barely functioning. Hearings that have costs thousands, if not tens of thousands, of pounds to prepare for are routinely cancelled at the last minute. The waiting time for a one day final hearing in a divorce case is now in excess of a year. The procedure that was brought in back in 1996 in order to ensure that all divorce cases would be resolved within a year of institution is now a laughable memory. More complex cases can take up to three years to resolve. The current state of affairs is a paradise for non-compliers and for those who seek to put assets beyond the reach of the court or who refuse to disclose. Solicitors are almost toothless in the face of even minor enforcement applications taking six months to list still with an evens chance that such an application will be cancelled with less than 48 hours’ notice.
Meanwhile, the chairman of the family division thinks it appropriate to pontificate on the type of language which is used in divorce cases and the extent to which it may impact upon the participant parties. His time could, with all due respect, be better spent in ensuring that we have something resembling a family justice system. What harm does the cancelled hearing costing thousands after a year’s wait do?
The changes in the law were predicated upon a misnomer. The suggestion was that if divorce was fault free that would necessarily translate out into any associated financial or children proceedings being less acrimonious. Anyone that has worked at the coal face of divorce for any period of time knows that this suggestion is nonsense. Dysfunctional individuals will still be dysfunctional irrespective of the basis of their divorce. Cases worth millions of pounds can still be settled by sensible people with the minimum of cost whilst cases worth next to nothing can still cost thousands of pounds to resolve simply because of the intransigence, dishonesty or plain petulant behaviour of one party.
Meanwhile, the incumbent government is exploring the prospect of forcing all parties to go to mediation in the belief that this will save money. The reality of course is that the government does not want to spend the money necessary in order to create a functioning family law system.
We have been down this route before 15 years ago when the government removed legal aid from the vast majority of family cases. The suggestion then was that mediation would be a compulsory alternative to public funding. The statistic banded about then was that 85% of cases that went to mediation settled and therefore if all divorce cases went to mediation 85% of cases would be settled. That again is a nonsense because people that went to mediation when it was voluntary tended to want to mediate and therefore to resolve their issues in a sensible fashion. 85% of people are not sensible.
The government will allow exemptions to the compulsory mediation process when there has been domestic violence or there has been an abusive relationship. It is fairly easy to predict that the number of allegations of abusive relationships will only increase as people see that as the only avenue to avoid compulsory mediation.
The sad thing is that none of this is rocket science. It is all entirely predictable by anyone who has had any experience of observing human behaviour. The foundation to it is one of political and financial agenda rather than any real desire to make the divorce process any less unpleasant for those involved in it. Indeed if anything, we are going backwards rather than forwards. By pushing the “no fault” agenda some in the profession gave the penny pinchers in the government a gift.
For further information on divorce or advice on any other family law matter, please contact Matthew Aves on 01732 747900 or [email protected] Warners Solicitors has offices in Sevenoaks and Tonbridge, Kent.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.