The long-anticipated era of “no-fault” divorce came into force on 6 April 2022, nearly two years after the passing of the Divorce, Dissolution and Separation Act.
Under the new system, couples will no longer need to make allegations about the conduct of a spouse. Instead, 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.
This change to the 50-year-old fault-based system is much welcomed by Legal Professionals. Some of them had been campaigning for this law since 1996! It also comes as a relief to those wanting a divorce, as they will be able to end their marriage with less stress and bad feeling. This is much better for the well-being of any children involved too.
However, there are calls questioning whether the reforms go far enough. Days before the new law came into force, the Justice Minister, Lord Wolfson, was asked in the House of Lords to review the laws governing financial provision, which are not dealt with under the new laws.
This is not the first time concerns have been raised about reforming the way the courts deal with financial settlements. A bill introduced in 2021, which subsequently failed, which elicited comments from Baroness Deech, including:
“The new no-fault divorce law is coming into force, but the most miserable and litigious part of it will remain: the law about splitting assets and paying maintenance.”
“Gathering evidence is no excuse for not formulating principle, and I can offer this piece of evidence right away – legal costs eat up chunks of the assets. Unless it is reformed, the no-fault divorce law will fail to achieve its aims.”
Financial provision is dealt with in proceedings that are separate from the divorce application. Making the divorce aspect of the process “blame free” does not ease the natural stress and tension any couple, divorcing or otherwise, feels when dealing with financial matters.
In a lengthy recent judgement by Mr Justice Peel in WC v HC (Financial Remedies Agreement), criticism was made about how some parties used financial proceedings to make personal attacks on their former partners. The Judge went on to say:
“Parties, and their legal advisers, may be under the impression that to describe the other party in pejorative terms, and seek to paint an unfavourable picture, will assist their case. It is high time that parties and their lawyers disabuse themselves of this erroneous notion. Judges will deal with relevant evidence and will not base decisions on alleged moral turpitude.”
With such strongly worded concerns being made about how financial provision is being dealt with, the Justice Minister Lord Wolfson confirmed that his department would be looking into financial provision “within a matter of weeks”.
Based on the Minister’s comments, we can expect more news on potential reforms this summer. It is likely that, given the complexity of reforming the way divorcing couples’ financial arrangements are dealt with, any announcement will be followed by several years of debate before any firm proposals are made.
Article written by Seamus Ryan