Life After No-Fault Divorce: What People Still Get Wrong

Life After No-Fault Divorce: What People Still Get Wrong

1. Introduction

It is now four years since the introduction of no-fault divorce in England and Wales. The idea that one spouse has to blame the other for the breakdown of the marriage (through their adultery or ‘unreasonable behaviour’) in order to get a divorce is slowly fading into history.

And the great hope was that by doing away with that “blame game” the law made it more likely that couples would be able to divorce reasonably amicably, thereby making it more likely that they would be able to resolve ancillary issues, such as arrangements for children and finances, by agreement.

But, has that hope been realised?

Some divorce lawyers suggest that it has not, reporting that the introduction of no-fault divorce has simply pushed blame and behaviour allegations further along the legal process, to be raised within those ancillary issues regarding children and, in particular, finances. In other words, in many divorces there is intrinsic animosity, which is likely to surface at some point, no matter what form the legal process takes.

In this article we will examine why and how blame and bad behaviour allegations may still be raised during the divorce process. We will also look at some of the things that people can still get wrong when they divorce, and how they can avoid those mistakes.

2. Why Bring Up Blame/Behaviour in Divorce?

So why do some parties to a divorce feel the need to blame the other party for what has happened, or to raise often irrelevant allegations of the other party’s bad behaviour? Well, there are probably many reasons, but they are likely to fit into one or both of two categories:

• A Reason for the Breakdown: Many people going through divorce still want to tell the court why they think that the marriage ended (i.e. due to the other party’s infidelity, or bad behaviour), and want the world to know it. They may even be searching for a reason for the breakdown of the marriage, unable to accept that they were in any way responsible. And they may simply feel that they have been wronged by the other party. For some, attributing blame may, it has been suggested, be a necessary therapeutic step in the post-divorce healing process.
• General Animosity: It goes without saying that feelings can run very high when a marriage breaks down. This can lead to almost uncontrollable animosity, even if there is no sense that the other party was responsible for the breakdown. Court proceedings can provide an outlet for that animosity.

Whatever the reason, the cold Legal Reality is that the court generally does not care why a couple are divorcing, when it comes to the law. And save as mentioned below, bad behaviour by one party, even if true, is unlikely to have a bearing upon any financial settlement (it may, of course, be relevant to sorting out arrangements for children, but even there, allegations are often made that are simply irrelevant).

In the rest of this article, we will concentrate upon the situation where, unable to attribute blame for the breakdown of the marriage, a party’s unresolved anger spills over into the Financial Remedy proceedings.

But before we do so, we will look briefly at one other thing that people can get wrong in connection with the new no-fault divorce process.

3. No-Fault Does Not Mean Quicker Divorce

There is a misconception in some quarters that no-fault means that divorces will be quicker. After all, if you don’t have to argue over blame, then surely any divorce will be a “Quickie Divorce”?

Whilst there may be a grain of truth in this argument, it is actually not the case that no-fault divorces will be quicker. In fact, they may take longer than divorces under the old, fault-based, system.

The grain of truth comes from the fact that under no-fault divorce it is no longer possible for the party who did not apply for the divorce to defend it. And defended divorces under the old system could take much longer. However, it was actually very rare for a divorce to be defended.

An undefended divorce under the old system could, at least in theory, be completed in about three months. But under the no-fault system they will all take at least six months, often longer.

The reason for this is that under the no-fault system there must be a 20-week ‘Period for Reflection’ between the divorce application and the Conditional Divorce Order. There was no such period for reflection under the old divorce system (under both systems there is also a six-week mandatory period between the Conditional Order (called ‘Decree Nisi’ under the old system) and the final divorce order, hence the 26-week, or 6-month, minimum time for a no-fault divorce).

Some people may feel that the period for reflection is simply “time wasted”, as they have no intention of seeking a reconciliation. But even there, the time can be productively used to sort out arrangements for children and finances.

It should also be understood that the length of a divorce is very often not connected with the time periods set out in the divorce process, as it is usually recommended that the divorce should not be finalised until all financial matters have been resolved, and in many cases, this will take more than six months.

4. Financial Remedies: The New ‘Battleground’?

As mentioned above, it has been suggested by some divorce lawyers that since the introduction of no-fault divorce there has been an increase in parties to financial remedy proceedings on divorce raising allegations of bad behaviour by the other party.

In particular, it has been said that people will litter their financial statements (required as part of the financial remedy procedure) with allegations of bad behaviour by the other party, most of which will have no relevance to the financial settlement.

Unfortunately, there are no official statistics to indicate whether or not this is true. All we have is anecdotal evidence, although no one is suggesting that raising such allegations in financial remedy proceedings is a new thing, only that its incidence has increased significantly since the introduction of no-fault divorce.

Assuming it is true that no-fault divorce has led to more people raising bad behaviour allegations within financial remedy proceedings then there are two things that anyone involved in such proceedings should understand:

• Conduct Can Be Relevant, But Only Rarely: Bad conduct by one party can be relevant to the outcome of financial remedy proceedings, but only very rarely. The conduct has to be particularly bad, and way beyond the sort of conduct that occurs in most marriage breakdowns. Only if the conduct is at that level is the ‘perpetrator’ likely to receive a diminished settlement. (Note that bad conduct within the course of the proceedings, for example failing to make full disclosure of assets (as also required as part of the financial remedy procedure) can be relevant, but usually only to the question of who pays the costs of the proceedings).
• Irrelevant Accusations Increase Costs and Delay: On the subject of costs, the second thing that must be understood is that raising irrelevant accusations of bad behaviour within financial remedy proceedings is likely to increase the costs of the proceedings, and also result in the proceedings taking longer. Irrelevant accusations should therefore be avoided.

5. How to Get it Right

Here are some good ways to avoid the pitfalls mentioned above:

• Parallel Tracks: Don’t wait for the Conditional Divorce Order to start financial negotiations. Use the period for reflection constructively! You may even be able to resolve financial arrangements by agreement during that period, so that you just have to get a court order setting out the financial agreement (usually called a ‘Consent Order’), before finalising the divorce.
• Take Advice Before Raising Conduct: You should seek the advice of an expert family lawyer before the proceedings start, or as early in the proceedings as possible. Your lawyer will advise you as to whether any allegations you wish to raise are, in fact, relevant, saving you the cost of raising issues that will have no bearing upon the outcome.
• Consider Non-Court Dispute Resolution: If you cannot agree a financial settlement via negotiation, you should consider a method of resolving the matter without going to court, for example:
  • Family Mediation: Whereby you and your spouse agree to refer the matter to a trained mediator, who will help you try to resolve matter by agreement. The mediator will ensure that only relevant matters are raised in discussion.
  • Collaborative Family Law: Whereby both parties have a collaboratively trained lawyer and everyone works together to find solutions that are beneficial for everyone involved.
  • Resolution Together: Where one specially trained lawyer works with both parties to help them achieve a resolution of the issues arising from their divorce.

5. Conclusion

No-fault divorce may have succeeded in making the entry into the legal process more civil, but perhaps it also had the unintended consequence of increasing the animosity in financial remedy proceedings.

And as we have seen, that can have detrimental effects. Accordingly, anyone going through divorce should be fully aware of the differences between their emotional needs and the legal realities.

As indicated above, the best way to avoid these pitfalls is to consult an expert family lawyer, as early as possible.

Walker Family Law’s team of specialist family lawyers can provide you with the expert help that you need. To speak with one of our lawyers, simply complete and submit the form, on this page.