An end to mudslinging: the coming into force of the no-fault divorce

When changes were introduced to how divorce suits were to be proceeded with, many of us met the news with hope and relief. We were told that there would be no further need for apportioning blame if the requesting party (the petitioner) wanted to start a divorce petition without the minimum two year wait.

The background

Prior to these changes, the petitioner could only proceed after the marriage had lasted 12 months, based on two facts (erroneously frequently cited as ‘grounds’), namely adultery or unreasonable behaviour. If there was to be no mudslinging, they would have to wait two years from the date of separation (which in itself could bring arguments) and obtain consent from their spouse. If that consent was not forthcoming, the wait was five years from separation.

This brought all sorts of difficulties, including the case of Mrs Tini Owens who was refused a divorce when her husband defended the petition and Judge Tolson found his behaviour was not unreasonable. Statute prevented her from petitioning on her own adultery and Mr Owens was not going to consent. Hence, she had a five year wait before she could divorce.

The no-fault divorce

Now we have the no-fault divorce, with some nice new names. The petition is now rebranded as an application and the decree nisi is the conditional order. The decree absolute no longer exists and has been replaced with a final order.

However, and here is the issue: it still allows an abuser to control the divorce suit, namely the process that drives the divorce.

Where one person, let’s say H issues his application (formerly known as a petition), it is served on his spouse (let’s say W) and as before she must return an acknowledgment to the court that she has had the papers in order for the suit to proceed. So far, so normal. The 12-month rule has remained in place, so it remains impossible to bring a divorce suit before those 12 months have elapsed. It might be that H insisted he would be divorcing W – that she cannot possibly be allowed to divorce him, but W doesn’t care – she just wants the divorce done.

The clock ticks and after 20 weeks (a new period introduced as a minimum, presumably to allow a cooling-off period) H can apply for a conditional order. But he does not. W reminds him and H ignores her. She cannot progress the divorce suit as in this scenario, because it was started by H alone. Had it been started jointly (a new and welcome change) that path would have been open to her.

So, what are her options? If she wants the divorce, she must apply with a fee for H’s petition to be dismissed. Locating the correct form and completing it to the court’s satisfaction can be enormously stressful. The paperwork is sent to H who may respond. It means that the door is wide open for litigation, the ensuing costs and W having to continue to engage with H who can use this system as a form of control when he refuses to progress a divorce and may obstruct W’s plans going forward. That is not just a paper process. The court then lists W’s application for a hearing, inviting H to file evidence. This means that W has to come in to direct contact with H, albeit special measures can be requested. It is draining emotionally and physically. She hopefully then is granted an order which withdraws H’s petition, but she is back to square one. She needs to issue proceedings and quickly in case H tries again and stalls. If H does not engage in returning the divorce papers once served, W will incur more costs and time to persuade the court he has received these papers, such as by personal service. Costs of course can be sought and awarded, but rarely are they for the full amount and any order could be a pyrrhic victory if it is not enforceable.

Conclusion

What is not clear is why, when these changes were made, no one thought this aspect through. There seems to be silence on this astonishing lack of foresight. The obvious route would have been to allow W to continue the divorce alone - to take it from the conditional order. It is already time for another shake up, perhaps this time with consultations involving practising family solicitors.

Joanna Abrahams is a director at Valemus Law
valemuslaw.com