Looking forward: The biggest family law story of 2021

As we prepare to say a perhaps not-so-sad farewell to the difficult year 2020, it is time to look forward to the year to come.

Of course, much of what may happen in the world of family law in 2021 will have to wait to be seen. However, there is one thing that is due to happen that already looks like being the biggest family law story of 2021, if not of the last fifty years.

 

No-fault divorce

Next autumn the new system of no-fault divorce is due to come into force.

This represents the culmination of literally decades of work by family lawyers and others, who have been pushing for this much-needed reform.

It is not actually the first time that Parliament has enacted a system of no-fault divorce. It did so way back in 1996. Unfortunately, that was a rather complex piece of legislation, and it was never entirely clear exactly how it would work. In the end, the new system was never brought into force, and the reform was scrapped.

This time the reform is much simpler and, whilst there are certainly some details that remain to be ironed out, there is no reason to fear that it will not come into force, even if the autumn deadline is missed.

 

Statement of marital breakdown

Under the new system there will still be the same one ground for divorce: that the marriage has irretrievably broken down. However, the big difference is that it will no longer be necessary to prove irretrievable breakdown by showing (for example) that the other party has committed adultery, or that they have behaved unreasonably.

Instead, one or both of the parties will file with the court a statement that the marriage has broken down irretrievably, and that will be accepted by the court as conclusive proof of irretrievable breakdown.

And thereafter the procedure will be very simple: twenty weeks after the statement is filed the court can make a conditional divorce order, the equivalent to the decree nisi under the current system, and six weeks after that the court can make a final divorce order, the equivalent of the current decree absolute.

This reform has been almost universally welcomed by the family justice community, who see it as an essential part of a modern divorce system.

 

The importance of no-fault divorce

So why is this reform so important?

Well, there are two main reasons: one specific to the current procedure, and one more general.

As mentioned above, the current divorce procedure requires the party seeking a divorce to blame the other party for the breakdown of the marriage (at least until the parties have been separated for two years), by showing that the other party has committed adultery or behaved unreasonably.

But what if there has been no adultery, and no significant ‘unreasonable behaviour’?

In such circumstances it is not uncommon for the parties to engage in a sort of charade, in which behaviour allegations are exaggerated or even manufactured, simply to get over the irretrievable breakdown hurdle. And the allegations are not disputed, as both parties want a divorce. Needless to say, all of this can bring the system into dispute.

But the more general point is that attributing blame can be very upsetting for the party accused of being responsible for the breakdown of the marriage, making them less willing to engage constructively in sorting out more important issues such as arrangements for children and finances.

There is simply no need to attribute blame for the marriage breakdown. If one or both parties state that the marriage has broken down then it has – that is a simple fact. The law does not have to concern itself with why the breakdown happened, prying into the parties’ private lives.

Removing blame does away with one major cause of ill-feeling between divorcing couples, helping them to concentrate on the future, rather than the past, and making it more likely that they will be able to resolve the important issues amicably.

So let us look forward to a New Year that will hopefully be rather better than the old!