The introduction of “no-fault” divorce this October has suffered a setback as it will now not be introduced until 6 April 2022 at the earliest. The reason for the delay is that the online divorce system has not been fully developed and tested. This is particularly disappointing, as the changes have not only been anticipated for several years but became a certainty in 2020 with the passing of the Divorce, Dissolution and Separation Act. This act brought in a much-welcomed change to the 50-year-old fault-based system which a person must for the time being still rely on to get divorced.
The law as it stands requires a separating couple to prove that their partner is at fault. This might be based on reasons like adultery, desertion or unreasonable behaviour. These fault-based reasons do not fit for many couples that simply want a quick and amicable divorce. The only option in these cases is to either:
a) wait for the law to change or
b) spend anywhere from 2 to 5 years in a failing relationship to allow a divorce by reason of separation.
The Law Society of England and Wales president, Stephanie Boyce, confirmed the disappointment that many in the profession feel at the delay in bringing the law up to date. She also pointed out that the current system could not only exacerbate tensions between couples but also may make dealing with important issues like the needs of any children more difficult to focus on.
Once the new rules come into force, either one or both spouses will be able to make a statement that the marriage has irretrievably broken down. This statement will be enough to prove that the marriage has come to an end and will allow the Court to make a Divorce Order.
The two-stage divorce process will remain, but the stages will have new names. The first stage (currently Decree Nisi) will now be called a conditional divorce order. This stage will also have a minimum waiting period of six weeks and one day. The second stage (currently Decree Absolute) will be called a final divorce order. There is also a reduced 20-week minimum period from the start of the divorce process to conditional divorce, which is down from the current 26-week period.
Chris Philp from the Ministry of Justice pointed out that “While this delay is unfortunate, it is essential that we take the time to get this (IT system) right.”
The sentiment from the Ministry on this point is, of course, correct. It is important that the digital divorce platform is working properly to ensure that confidence in the changes is not inadvertently undermined. The online divorce portal has recently been affected by several “bugs”, including:
• Respondents and their solicitors being dragged out of the digital portal
• Issues with notices of change in solicitors
• Problems sorting refunds on consent orders
• Concerns with contesting financial remedy applications
Any bugs in the system will add to already significant delays in how the system has been working. There have also been cases where the old paper system needed to be used, as the issue could not be resolved. Ideally, these glitches will be ironed out rather than having an expensive government-backed IT system limited (or even scrapped) based on poor early performance.
For clients who are considering commencing divorce proceedings, it is a fair question for them to ask if it is worth waiting for the new law to come into effect. The answer depends on a client’s particular circumstances, but if they can wait, it may potentially reduce any animosity. It could also make it much more likely that arrangements for any dependent children and finances can be sorted out amicably.