In this episode of Legal Chat, Charles Tenant talks about no-fault divorce, one year on from the law change. The divorce process has dramatically changed in the last 20 years, traditional paperwork filled with legal jargon is no longer needed, its now as simple as filling out an online form.
Charles discusses some of the positives and negatives of the no-fault divorce system as well as providing advice for anyone currently going through, or considering the divorce process.
Paul
A very warm welcome to another podcast episode with Warner’s Solicitors. And today I’m with Charles Tennant. Charles is a Partner with Warner Solicitors, who specialises in family law. And today, we’re going to be talking about no-fault divorce. One year on, welcome, Charles.
Charles
Hello.
Paul
Last year, we saw some rather big changes to family law. Can you just remind us of what these changes were?
Charles
Yes, absolutely, Paul. So, the big change to family law, precisely, divorce law, was that we washed away over 50 years of law going back to the Matrimonial Causes Act 1973 to a new no-fault divorce. So, whereas under the old divorce law, there was an element in certain scenarios, of finger-pointing that has now been removed. So, there’s no longer a need to blame one person for the breakdown of the marriage.
Paul
And what was the reason behind these changes? What were they supposed to achieve?
Charles
There were various reasons behind the changes, primarily in relation to removing the blame game, removing the unnecessary emotional angst, unhappiness, and frustration arising from the old system, which had required, in many scenarios, for one person to blame the other. The hope was that by doing that, you would find yourself in a situation where there was less unpleasantness, less stress on the persons getting divorced, less stress on the extended family, and less pressure on the children and that that would then lead on to a greater prospect of individuals being able to divorce amicably, politely, respectfully, and therefore hopefully with less unpleasantness, and therefore fewer disputes.
So, the hope would be that there would be less time because of greater prospects of finding resolutions outside of court, for example, going to mediation and reaching agreements that were practical and sensible.
Paul
Do you think that this has been a successful scenario, then?
Charles
The truth, Paul, is we just don’t know. We’re still very early days. There aren’t statistics out yet formally, I think I’ve seen some statistics that suggest that divorces have been up, i.e. there are more divorces this year than last year, although the final sets of stats are not yet available. I don’t think there’s any doubt that reducing animosity and removing the blame game is positive, particularly if, for example, it means that it doesn’t lead to further disputes or emotional angst between the individuals concerned, but we just don’t know at the moment where it’s all leading or whether it’s going to have positive implications for wider society. The concern prior to the new law had been that if you made it too easy to get divorced, there would be fewer successful marriages like it was the old-fashioned view. That’s certainly not a concern that ultimately stopped them from changing the law.
Paul
What do you think of the major problems or benefits that have led to the changes? Do you think that when it comes to resolving financial issues, advice has still got to be received from a lawyer?
Charles
This is precisely the major benefit and the major problem is the same thing. So, the major benefit is that if you are an individual getting divorced or you want to get divorced, you could now do this online yourself without needing any legal advice or help. It’s now so straightforward in that it’s an electronic form that you complete on the GOV.UK website that you just don’t need a lawyer anymore.
The big difference is they’ve removed a lot of the legal language. Therefore, individuals before were confused and didn’t understand what they were doing or didn’t understand what questions they would be asked. There is no longer that degree of confusion, and that’s the benefit. So, from a public policy or governmental perspective, individuals could now get divorced without needing lawyers, but that is also the problem. It means they’re getting divorced without necessarily having the legal advice that they should be having and without necessarily understanding the consequences or what may follow. And the point you’ve just touched on is the crucial one, and this is one that we are deeply concerned about, which is that if people are getting divorced without legal advice, the concern is they are not formally resolving the issues that arise from the divorce. The crucial one there is the financial issues and if you don’t have a formal resolution of your financial issues, if you don’t have what’s called a Final Financial Remedy Order, otherwise known as a Consent Order or a Court Order, then you don’t have a formal agreement at all. If you don’t have a formal agreement, what that means is that in years to come, in the future, if something changes, the risk is that the deal you thought you had actually isn’t a deal and someone can come back and say, ‘actually, I’ve changed my mind, I now want something else.’
So that’s a big concern, is that we anticipate that if the divorce numbers are up, what that means is lots of people are getting divorced without getting a formal financial settlement. Therefore, the risk is that they’re creating a huge problem for the future.
Paul
So, it’s very likely that you’re going to see people coming back when they don’t have a deal at all.
Charles
Correct. They will think they have a deal, or they will think that the deal, which is something written in an email between them, for example, or even a WhatsApp message or written on a piece of paper, they will think, that’s a binding deal. That’s not the case at all. The reality is that any agreement that individuals reach between themselves is unlikely to be binding and conclusive, whilst a court could, in theory, hold them to that agreement, equally, it might not.
The worry is that if, for example, they get divorced now, when the facts are whatever they are today. So, they’re both working. They’ve both got certain assets and then they split the money as it is today and then in 5 years, something’s changed. One of them is no longer working and one of them is remarried. One of them has received an inheritance. There could be all sorts of things that would change and that deal might no longer be the fair one. The real nightmare scenario is where one of them loses all their money. So, they split the money equally and fairly, now let’s say, ‘off you go, here’s your share’ and then one of them loses it all, perhaps recklessly or perhaps just very unfortunately. They then come back to the court and say, ‘I need my financial circumstances to be considered’. The person who’s managed to keep hold of their money, who’s been careful, cautious, might say, well, this is terribly unfair, but they’ll find that they don’t have a binding and conclusive financial settlement.
The key point that is crucial for people to understand is that getting divorced does not resolve the financial issues arising from the breakdown of the marriage. It just simply takes you from being someone who’s married to being someone who’s divorced. What’s interesting is that I have noticed that the new sealed divorce application now has a little warning on the face of it, saying, ‘Please note this does not resolve financial matters’.
Now, that note did not appear at the start of the new divorce process last year. So, the court has realised that they’ve got a problem and they are now putting a little warning on. But of course, it’s all very well and good putting a warning on, that doesn’t mean people will understand it and that doesn’t mean they’ll take legal advice.
Paul
This leads on quite neatly to the next question, which is, do you have any advice for anyone going through a divorce at the moment?
Charles
Absolutely. It is 100% crucial to get advice. And even if you have the most straightforward, amicable divorce, that’s brilliant, I’m very pleased, less cost for you and more straightforward for us. Even if you have the most straightforward divorce, you still need to get advice and you still need to get that Final Financial Remedy Order, that Clean Break Order to ensure that the claims cannot be pursued at a later date.
It doesn’t need to be an expensive exercise. It doesn’t need to be a long-winded exercise and positively, just like the online divorce, the Financial Clean Break Order can be obtained through an online process as well. If everyone agrees, it could be done very quickly and very cost-effectively indeed.
Paul
So, Charles, just one further point that I think you would like to make. I’m sure of that is the whole way divorce has been dealt with now.
Charles
The key message to understand is that the way that the divorce process is managed and administered has changed beyond all recognition in the time that I have been in practice, so approximately 20 years. So, back in the good old days, as we might like to fondly remember them, if you want to get divorced, you completed what was the old-fashioned Divorce Petition?
It had a lot of legal language in it, and you sent your hard paper copy off to your local Divorce or County Court, it was dealt with very slowly in the court office, and it was referred to a local Judge. All of that has been washed away over a period of time. The process has completely changed.
We now have a process that’s almost entirely online. Paper transactions are very unusual. There’s a little bit of paper generated, but it’s nearly all done completely online that ultimately gets referred to a judge sitting somewhere, probably in Birmingham, miles away. So, this process we had before that involved local courts and local Judges and paper has all been replaced by a far more modern, and we hope, fit for the 21st-century electronic process.
Paul
Well, thank you for your time today, Charles. You’ve made this very clear, obviously, an evolving situation when it comes to no-fault divorce. And thank you very much for the information you’ve shared with us today.
I’ve been talking to Charles Tennant, who is a Partner at Warner’s solicitors specialising in family law. And we’ve been focusing on no-fault divorce and looking at how things are one year on.
Please check out the other podcasts in this series. You can gain extremely good advice from the solicitors at Warners and for the family team, please arrange a consultation with one of the family team here at Warners solicitors as soon as it’s convenient for you. I’m Paul Harvey. Please join me next time.
